Nation State Boundaries and Human Rights of People in South Asia 1

NATION STATE BOUNDARIES
AND
HUMAN RIGHTS
OF
PEOPLE IN SOUTH ASIA
Shomona Khanna
NATION STATE BOUNDARIES
AND
HUMAN RIGHTS
OF
PEOPLE IN SOUTH ASIA
Shomona Khanna
ii SAHR
Published by:
South Asians for Human Rights (SAHR)
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ISBN: 978 - 955 -1489 - 20 - 5

Printed and bound in Sri Lanka by Wits Originals
Nation State Boundaries and Human Rights of People in South Asia iii
List of Abbreviations
AIHRC Afghanistan Independent Human Rights Commission
AIOS Anti Infiltration Operating System
AACPR Actions (in Aid of Civil Power) Regulations 2011
AAPSU All Arunachal Pradesh Students Union
AFSPA Armed Forces Special Powers Act
AHRD ASEAN Human Rights Declaration
ASEAN Association of South East Asian Nations
BSF Border Security Force
BGB Border Guard Bangladesh
CAT Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
CED Committee on Enforced Disappearances
CEDAW Convention on the Elimination of all Forms of
Discrimination Against Women
CERD Convention on the Elimination of All Forms of Racial
Discrimination
CHT Chittagong Hill Tracts
CO Commanding Officer
CrPC Code of Criminal Procedure
EEZ Exclusive Economic Zone
EEVFAM Extra Judicial Execution Victim Families Association
FATA Federally Administered Tribal Areas
FCR Frontier Crimes Regulation 1901
iv SAHR
HRC Human Rights Council (United Nations)

HRCP Human Rights Commission of Pakistan
IBSF Indian Border Security Force
ICC International Coordinating Committee (of National
Institutions)
ICCPR International Covenant on Civil and Political Rights
IDP Internally Displaced Person/People
ICESCR International Covenant on Economic, Social and
Cultural Rights
ICJ International Commission of Jurists
ICSPA International Convention on the Suppression and
Punishment of the Crime of Apartheid
IIDH Inter-American Institute of Human Rights
IMDT Illegal Migrants (Determination by Tribunals) Act, 1983
J&K Jammu and Kashmir
LTTE Liberation Tigers of Tamil Eelam
MSA Maritime Security Agency
NADRA National Database and Registration Authority (Pakistan)
NFF National Fishworkers Forum
NHRC National Human Rights Commission
NHRI National Human Rights Institution
NHRAP National Human Rights Action Plan
NPMHR Naga Peoples Movement for Human Rights
NWFP North Western Frontier Provinces (Pakistan)
NEFA North Eastern Frontier Agency
OAU Organisation of African Unity
v
OHCHR Office of the High Commissioner of Human Rights

PATA Provincially Administered Tribal Areas
PCJSS Parbatya Chattagram Jana Sanghati Samti (Bangladesh)
PIL Public Interest Litigation
PoR Proof of Registration
PPF Pakistan Fisherfolk Forum
PSA Public Safety Act, 1978 of Jammu and Kashmir
PSO Public Security Ordinance, 1947 (Sri Lanka)
PTA Prevention of Terrorism Act (Sri Lanka)
PUCL Peoples Union for Civil Liberties
RSD Refugee Status Determination
RAB Rapid Action Battalion (Bangladesh)
SAARC South Asian Association for Regional Cooperation
SIT Special Investigation Team
SLA Sri Lankan Army
SSB Sashastra Seema Bal (Indian Armed Border Force)
UDHR Universal Declaration of Human Rights
ULFA United Liberation Front of Assam
UN United Nations
UNCRC United Nations Convention on the Rights of the Child
UNHCR United Nations High Commissioner for Refugees
UNODC United Nations Office on Drugs and Crime
UPR Universal Periodic Review
vi SAHR
Nation State Boundaries and Human Rights of People in South Asia vii
Preface
South Asians for Human Rights (SAHR) is pleased to publish
Nation State Boundaries and Human Rights of People in South
Asia. SAHR as a regional organization that advocates on issues
that are common to countries in the region. SAHR, concerned
about the plight of people living in border areas of states that
constitute the South Asian Association for Regional Cooperation
(SAARC) region, decided to undertake a study on the issue. The
aim is to highlight problems faced by people living in border areas
and its implications for the protection of their human rights.
The SAHR study on border issues completed in June 2016, focuses

mainly on human rights violations faced by the people living in the
border areas and highlights some of the causes. The study delineates
the various human rights violations carried out by security forces
in the name of national security in the border territories. It looks
at the stateless people and refugees and recommends measures
that could be taken by states to mitigate problems faced by people
living in border areas. However, the study avoids examining issues
related to disputes between states regarding their borders.
SAHR intends to use the study as an advocacy tool for encouraging

the SAARC states to find durable solutions for the problems
faced by people living in border areas. SAHR also hopes that the
SAARC, as an inter-governmental organization, would engage
with member states and find preventive measures to protect the
human rights of people living in border areas in the region.
viii SAHR
SAHR is grateful to Ms. Shomona Khanna who is an experienced

researcher and lawyer from India for producing the study despite
the challenges involved in embarking on a study of this nature.
SAHR hopes that this unique study, first of its kind to be produced
in the region, would contribute to the protection of human rights
of millions of people living in the border areas of countries that
constitute the SAARC region.
Hina Jilani
South Asians for Human Rights
Chairperson
Nation State Boundaries and Human Rights of People in South Asia ix
Acknowledgements
SAHR would like to thank the Ford Foundation for providing
funding for the study on Nation State Boundaries and Human
Rights of People in South Asia and the publication.
SAHR also wishes to thank the following persons:
Ms. Shomona Khanna for conducting the study; Ms. Tusharika

Mattoo and Ms. Megha Bahl for their valuable contribution to the
research; and all the persons who agreed to be interviewed in data
collection for the study.
SAHR advisory group on the border study Ms. Sultana Kamal,

Dr. Asif Nasrul, Mr. Jatin Desai, Mr. D.J. Ravindran, Mr. Kamran
Arif and Mr. Lakshan Dias for their constructive feedback on the
research document.
Professor Firdous Azim and Mr. Zain Ali for editing and fact
checking the research document; and finally,
All the Bureau Members for their guidance and support in

accomplishing this assignment.
x SAHR
Nation State Boundaries and Human Rights of People in South Asia xi
Content
i Introduction 1
ii Weaponisation of Border Areas, Combined with Drug 11
Trade and Trafficking
iii Human Rights Violations by Security Forces Against 19
Local Populations in the Border Areas
iv Refugees and the Impact of National Boundaries 47
v Law and Practice of Immunity to Security Forces at 105
Border Areas
vi Mechanisms for Protection of Human Rights at the 137
International and Regional Level
vii Preliminary Recommendations and Conclusion 171
Annexure A: A Brief Note on the Inter-American 177

Mechanisms for Protection of Human Rights
Annexure B: Short Note on ASEAN Mechanisms with 185
Reference to Human Rights
Annexure C: Model National Law on Refugees 191
Annexure D: Recommendations of the Seminar on 201
Refugees, Migrants, Internally Displaced and Stateless
Persons in South Asia: Need for a Regional Protocol
xii SAHR
One day there will be no borders,
no boundaries, no flags,
and no countries
and the only passport
will be the heart.
Carlos Santana
Nation State Boundaries and Human Rights of People in South Asia 1
Introduction
The present study1 seeks to examine the issue of human rights
violations in the border areas of countries in the South Asian
Association for Regional Cooperation (SAARC) region. It is in an
effort to map both the nature and extent of these violations, and
the mechanisms for accountability of those that perpetrate them. At
the outset, it must be stated that the study does not set out to enter
into contentious issues between countries regarding demarcation of
their boundaries or territories. Furthermore, in its refusal to enter
into such contentions, it seeks to shift the focus to the people who
inhabit these areas, and their human suffering. The study approaches
the issue from a human rights perspective, and therefore its focus
is on how the boundaries between countries impact the lives and
livelihood of people living on both sides of the borders.
The main objectives of this study are to map the different forms
of human rights violations which take place, gather authentic data
from the human rights perspective, and ultimately to prepare the
ground for taking up these issues in the form of a regional campaign
towards protecting and promoting rights of the affected people.
1
The writer would like to acknowledge the research assistance and support provided
by Ms. Tusharika Mattoo and Ms. Megha Bahl to this study, and their active
contribution to its development.
2 SAHR
Remembering Felani Khatun
A vivid example which puts the present study within the context of
human rights relates to the gruesome killing of a young girl, Felani
Khatun, at the hands of the Border Security Force (BSF) in India. A
fourteen year old girl, Felani Khatun, who had been illegally living in
New Delhi, India was attempting to cross the border to Bangladesh
with her father and maternal uncle for her marriage, when she
was killed by the BSF. The two men had successfully crossed the
barbed-wire fence at the border. However, the young girls clothes
got entangled, and as she struggled to free herself, she was shot by
the Border Forces. Witnesses claimed that she was alive for at least
the next hour, even as she continued to hang on the fence. After
she died, her body continued to hang on the fence for four hours.
A photograph of the ghastly sight was published across the world.
As per news-reports,2 when the BSF personnel finally took her
body down, they tied her hands and arms to a pole, much like an
animal, and carried her off, handing her over to the Border Guard
Bangladesh (BGB) personnel the following day.
At the time, this incident caught the attention of the global media.
As a result, the BSF found Constable Amiya Ghosh of the 181
Battalion responsible, and he was charged under Section 304 of the
2
North Bengal Times BD BSF to revise Felani trial, September 13, 2013; see also
Chowdhury, Syed Tashfin Acquittal of India border guard in Bangladeshi girls
killing rekindles human rights concerns Asia Times, News & Features, South Asia,
July 10, 2015, http://www.atimes.com/article/acquittal-of-india-border-guard-in-
bangladeshi-girls-killing-rekindles-human-rights-concerns/ (accessed on 16 August
2016).
Indian Penal Code,3 as well as Section 46 of the BSF Act.4 The trial
commenced two years later on August 13, 2013, and a few months
later the constable was cleared of the charges. Due to public outcry,
on July 2, 2015 a revision trial was held in a special West Bengal
Court of the BSF. But despite the backlash and condemnation, the
previous verdict was upheld.
Subsequently, Amnesty India declared that it would file a Public

Interest Litigation (PIL) in the Indian Supreme Court to challenge
the verdict of the West Bengal Court. Information regarding the
fate of this petition is not available.
This tragic story encapsulates the challenges and human tragedies

which inhabit border zones in the SAARC region. The cultural and
historical kinship ties between the peoples of these countries, though
fragmented by the drawing of borders, remain vibrant. As a result
people are drawn from one side of the border to the other through
human relationships, in this case for the purpose of marriage, even as
the methods of travel are illegal. The very illegality of their actions
places them in a position of suspicion, and therefore vulnerable to
violent reprisals from the heavily armed security forces patrolling
these borders. Even when the forces cross the boundary of what is
morally right, which they so clearly did in this case, holding them
accountable in the courts of law is difficult because of the special
3
Section 304 of the Indian Penal Code relates to punishment for culpable homicide
not amounting to murder. According to this provision, a person found guilty of this
crime where the intention was to cause death, can be sentenced to imprisonment for
life, or imprisonment up to ten years, and a fine. The presence of intention, or mens
rea, determines the quantum of punishment. Thus, absence of mens rea would attract
the lesser sentence of imprisonment up to ten years.
4
Section 46 of the Border Security Force Act, 1968 relates to civil offences which
means, in short, offences committed against civilians or under civilian law by the
security forces.
4 SAHR
security legislations which protect their actions, and the general

mindset within the law enforcement agencies that national borders
need to be protected at all costs, and if necessary through the use of
force. A combination of these factors results in a denouement where
a young woman travelling to the happy destination of her marriage
meets a sub-human death and the perpetrators are never brought to
book.
In the present study, the author attempts to untangle each of these

threads and scrutinize them in the hope that future occurrences of
such tragic proportions can be prevented.
It is also important to clarify that the study focuses only on the

SAARC countries, namely, India, Bangladesh, Sri Lanka, Nepal,
Maldives, Bhutan, Pakistan and Afghanistan. Other countries in the
region, even if they do have contiguous borders, do not form the
subject matter of the present study.
A brief outline of the different borders shared by the SAARC

countries
As stated earlier, the present study does not enter into an examination
of the many disputes relating to borders between the countries in
the region. However, the fact that these disputes exist has important
implications for the intensity of human rights violations.
The border of Afghanistan with Pakistan, for instance, which is

described as the Durand Line5 remains disputed till today, and has
major security repercussions for both countries and also for India. The
5
The Durand Line was established in 1893 by a British Diplomat and civil servant in
India, Sir Mortimer Durand. It was modified by the Anglo-American Treaty of 1919
and eventually inherited by Pakistan.
Durand Line measures about 2,640 kilometers from Baluchistan to

the northern mountain peaks of the North-West Frontier Province
(NWFP) (now known as Khyber Pakhtunkhwa) to the Federally
Administered Tribal Areas (FATA).6
The relationship between India and Pakistan has remained tense and
complex from the time of the Partition in 1947, and this tension
has manifested in disputed borders and in particular the disputed
territory of Kashmir. The border itself is disputed by the two countries
in some areas. India claims a 3,323 km border (including the Line
of Control in the Jammu and Kashmir Sector) but Pakistan claims
the border runs 2,900 km (which does not include the Jammu and
Kashmir sector). The Indian claim is recognised as the International
Border. On the Indian side, the border runs along the four Indian
States of Jammu & Kashmir, Punjab, Gujarat and Rajasthan, and
along the Pakistan side it runs along the Pakistani provinces of
Sindh and Punjab.
The border between India and Pakistan has been called the most
dangerous border in the world.7 Apart from the Kashmir conflict, the
war of 1965, the war of 1971, and the Kargil war, border skirmishes
occur on a regular basis, with presence of military personnel on high
alert on both sides. While the intensity of the troubles faced by
civilian populations definitely peaks during times of war or attrition,
life for people living along this particular border is remarkably hard
even in the ordinary course.
6
Rahi, Arwin. Why the Durand Line Matters The Diplomat, February 21, 2014,
http://thediplomat.com/2014/02/why-the-durand-line-matters/ (accessed on 16
August 2016).
7
The worlds most dangerous border. The Economist. May 19, 2011. Print Edition.
6 SAHR
Bangladesh shares a 4,096.7 km long border with India. On the

Indian side, seven States8 fall along this border. On the Bangladesh
side six divisions of the country fall along the border. These include
Dhaka, Khulna, Rajshahi, Rangpur, Sylhet, and Chittagong. People
have been crossing over this border for a variety of reasons for
decades. Some of these reasons include natural calamities, the 1971
war, livelihood, and so on. While the dispute regarding this border
is less acrimonious than that described above, the border remains a
hostile one due to the influx of Bangladeshi migrants into India.
Between other countries where there is no history of antagonism

or border dispute, the borders are relatively more peaceful and life
for ordinary people on both sides less stressful. Thus, comparatively,
relations between India and Nepal have been less hostile, with
the foundation being laid in the IndiaNepal Treaty of Peace and
Friendship of 1950. Additionally, in 2014 an agreement to review,
adjust, and update the treaty was made. The treaty was last revised
in 2006.9 There have also been talks as recently as January 2016, to
address the perception of Nepal of Indias presumptuous attitude
towards it. Nepal being landlocked by India from three sides, the
border is porous by design, facilitating a free flow of people for
livelihood and social reasons, and goods for trade.
Cordial relations also exist between India and the Kingdom of

Bhutan, which share a 699 km long border traversing four States
on the Indian side,10 and various dzongkhas or districts of Bhutan
8
The Indian states that share a border with Bangladesh are West Bengal, Sikkim,
Assam, Arunachal Pradesh, Meghalaya, Tripura and Mizoram.
9
Ghimre, Yubaraj and Sinha, Rakesh. 2014 and beyond: India, Nepal agree to refresh
1950 treaty The Indian Express August 5, 2014, http://indianexpress.com/article/
world/neighbours/india-nepal-agree-to-review-adjust-update-1950-treaty/
10
The Bhutan border falls along the States of Assam, West Bengal, Arunachal Pradesh,
and Sikkim in India.
including Zhemgang, Sarpang, Samdrup, Jongkhar, Chukkha and

Samste. In 1949 a treaty of friendship was signed between India and
Bhutan where the countries, while establishing free trade, agreed
to a non-interference policy on internal matters. This treaty also
provided that both countries would consult each other on foreign
affairs and defence matters, indicating Indias effective involvement
in shaping the foreign policies of Bhutan. This treaty continued to be
in place till 2007, when the provision of Indian guidance on foreign
matters was removed.
The two countries share a unique relationship between their armed

forces. The Indian Army is responsible for training the officer cadres
of the armed forces of Bhutan, as well as providing them with
arms supplies. Since 1949, the officers the Royal Army of Bhutan
and the Royal Body Guards have all been sent for training to the
National Defence Academy at Pune (Maharashtra) and Dehradun
(Uttarakhand) in India. Even more interestingly, the Indian Air
Force, through the Eastern Air Command, takes care of Bhutans air
defence needs. Additionally, the Indian Armed forces have recently
set up a training mission in Bhutan, called the India Military Training
Team.11 India has also assisted Bhutan in its strategic planning viz.
Operation All Clear.12
11
Lee, Robert Victor Bhutan: The Indian Armys Front Line. The Diplomat.
November 6, 2014. http://thediplomat.com/2014/11/bhutan-the-indian-armys-
front-line/. See also: Stobdan, P. India and Bhutan: The Strategic Imperative
Institute for Defence Studies and Analyses (IDSA). Occasional Paper No. 36,
September 2014, http://www.idsa.in/occasionalpapers/OP_IndiaandBhutan_
pstobdan_260914 ; Gokhale, Nitin A. personal interview on 31.03.2015.
12
Banerjee, D & Laishram, B S. Bhutans Operation All Clear: Implications for
insurgency and security cooperation, IPCS Issue Brief, No.18, January 2004, http://
www.ipcs.org/pdf_file/issue/IB18-OperationAllClear.pdf.
8 SAHR
Maldives and Sri Lanka both have no land borders with any other
country, being completely water bound in the Indian Ocean. The
republic of Maldives is comprised of a group of 26 atolls.13 Its
economy is primarily dependent on tourism, with fishing being the
next most important sector of the economy. The strategic location
of Maldives, especially with respect to the important sea lane transit
route for trade and oil, has meant that it receives considerable
attention from some of the larger countries in the region. There are
no major conflicts which have been reported resulting from border
disputes between these countries and Maldives.
Similarly, the sea-bound country of Sri Lanka has no border

dispute with any country in the region. Maldives and Sri Lanka
have amicably decided their maritime boundaries and control over
their Exclusive Economic Zones (EEZs). In 2012 India, Sri Lanka,
and Maldives entered into a trilateral agreement wherein they
have pooled resources to address security concerns.14 Illegal fishing
(bottom trawling, etc.) by South Indian fisherfolk in the Sri Lankan
waters, however, remains a major issue which has not been resolved.15
13
An atoll is a ring-shaped coral reef including a coral rim that encircles a lagoon
partially or completely.
14
Radhakrishnan, R.K. India, Sri Lanka, Maldives to sign agreement on maritime
cooperation [Colombo] The Hindu. 16 Dec, 2013, http://www.thehindu.com/
news/international/india-sri-lanka-maldives-to-sign-agreement-on-maritime-
cooperation/article4203041.ece . See also Barbara Crosette Coup Attempt in
Maldives Laid to Tamil Force. The New York Times 18 Dec. 1988, http://www.
nytimes.com/1988/12/18/world/coup-attempt-in-maldives-laid-to-tamil-force.
html
15
Camelia Nathaniel. Fishing invasion causing 60 million Dollar loss, The Sunday
Leader, January 12,2014, http://www.thesundayleader.lk/2014/01/12/fishing-
invasion-causing-60-million-dollar-loss/ ; Gautam Sen, Problem of Fishermen
in India Sri Lanka Relations, Institute of Defence Studies and Anayses, http://
www.idsa.in/idsacomments/problem-of-fishermen-in-india-sri-lanka-relations_
gsen_200516
The social and political history of the region has been tumultuous,
with many countries having become independent from colonization
by European powers only in the last century, and others still at a
nascent stage in their nationhood. Constitutional democracies also
have not developed uniformly and some nations in the region have
struggled with military rule in the recent past.16 These upheavals have
had enormous consequences upon the people who populate these
countries, and the bordering regions in particular. One consequence
of the colonial past has been that many of the countries in the region
struggle with severe underdevelopment. Despite recent economic
advances, the fulfillment of basic human needs remains a challenge.
Migrations from one country to another in this region of vast

populations - in times of war, attrition, or political transformation -
are among the highest in the world, leading to a very high proportion
of political and economic refugees. Yet one of the key methods
through which an emerging nation defines its identity is through
stringent citizenship laws and the drawing of lines between those
who rightfully constitute the nation and its citizens, and the other,
the alien or the foreigner. Those who constitute the latter, often due
to circumstances beyond their control, are extremely vulnerable to
all manner of exploitation and human rights abuse. This study will
also examine how the basic rights of these populations are protected
under international law, and how these protections translate into
reality in this region.
Given the acrimonious nature of relationships and the nascent

character of the states in the region, it is not surprising that the
border areas are heavily guarded with a high presence of armed
forces and paramilitary forces to supplement, even supplant, the local
16
At the time of writing this report, none of the SAARC countries were under military
rule.
10 SAHR
police forces. Without exception, we find that such security forces

are cocooned from accountability within myriad protective laws
and practices, some of which can even be traced to the respective
Constitutions. This has led to a distinctly worrying atmosphere of
impunity, where the security forces perceive themselves, and are
perceived by others, as being immune from the ordinary operation
of the rule of law. There is increasing evidence to demonstrate that
there are widespread human rights abuses being committed by these
security forces at the border areas under the guise of protecting
the borders, and under the protection of special laws. Such abuses
range from use of force, torture and wrongful detention, to enforced
disappearances, extra judicial executions and sexual violence. Yet
there are no viable remedies available within the domestic law for
holding such security forces accountable and bringing them to book,
or even obtaining reparations for victims of such abuse. Even where
protections in terms of domestic laws exist, their implementation
seems to be lacking.
It is not surprising that such abuses are intense in border areas

between countries which have volatile relationships. But even in
border areas where relations between the countries are comparatively
non hostile, there are concerns regarding smuggling of arms, narcotic
drugs, and other illicit and licit goods, and also trafficking of persons
for exploitative uses such as bonded labour and prostitution. This has
led to a general atmosphere of criminalisation of these areas, even as
it has resulted in pervasive corruption and its attendant problems,
which has impacted the daily lives of the civilians living there.
It becomes, therefore, important to see whether any remedy is

available at the international or regional level, and the present study
seeks to examine at some length the international and regional
mechanisms for redress of human rights violations.
ii
Weaponisation of Border Areas,

Combined with Drug Trade and
Trafficking
In the present section we will be examining the nature of weapons
build-up along border areas, which is purportedly in response to the
need to protect the integrity of such borders, prevent infiltration
of aliens and in particular to control illegal activities. Conversely,
there has also been an increase in the weaponisation of those that
undertake such illegal activities themselves, such as those involved
in the drug trade and human trafficking. The high concentration
of weapons in these areas has a considerable impact on the human
rights of populations inhabiting these areas. These direct and indirect
consequences are explored below.
The borders shared by Pakistan and Afghanistan, with their close

clan and tribe linkages on both sides, have a significant presence
of insurgent groups. This has led to a large scale weaponisation of
the areas. Moreover, Afghanistan lies in the Golden Crescent1 of
the drug trade. An intertwined relationship between the drug trade,
weapons production and money laundering has been witnessed in
these areas. The combination of large-scale drug production and
1
The Golden Crescent is the name given to the areas of Afghanistan, Pakistan, and
Iran which are the principal areas of illicit opium production. It accounts for a
majority of opium production worldwide.
12 SAHR
the small-weapons trade in Afghanistan has been labelled the

Kalashnikov Culture.
Being a highly inaccessible and mountainous area, the border has

remained porous and provided ample opportunity for terrorist
militant groups to find safe havens in Pakistan whenever the
situation in Afghanistan becomes inimical. The porous border has
also facilitated large-scale smuggling of both licit and illicit goods,
in particular narcotics. The special status of these regions under
the Pakistan Constitution (under the nomenclature of PATA and
FATA), the dominance of the tribal justice system, and the regular
clashes between the Pakistan armed forces and the terrorist militant
groups, have combined to form a set of circumstances that have
caused the populations living in these areas enormous suffering.
The migration of refugees, narcotics and weapons trafficking, human

smuggling and cross-border infiltration by militants in these areas
all exert considerable pressure on the governments of the region to
secure their borders.
Warlords in Afghanistan and Pakistan are responsible for the $80

million revenue in drug trafficking which supports the Taliban.
There are around 65,000 drug cultivators in Helmand province
in Afghanistan supplying 1,500 traffickers. After the fall of the
Taliban government, opium production and its trade have reached a
record high, with over 90 per cent of the worlds opium supplied by
Afghanistan.2 In 2008, poppy production reached 7,700 metric tons
cultivated over 157,000 hectares of land, while more than 70,000
2
Neil, Alexander. Towards Cross-Border Security. Page 3: Royal United Services
Institute (RUSI). 2010 https://rusi.org/sites/default/files/201002_op_towards_
cross-border_security_0.pdf
hectares of land were used for the cultivation of cannabis.3 This has
created a black market economy involving extremist organisations,
and has led to the criminalization and corruption of a significant
proportion of the regional economies in Pakistan and Afghanistan.4
The United Nations Office on Drugs and Crime (UNODC) has

pointed out that the war on drugs resulting from the enormous
drug trafficking in the region leads to an undermining of several
human rights. Criminalization of drug use, production, and trade
often affects the most vulnerable in the society, as do systems of drug
trafficking. Stringent laws aimed at curbing drug trade and drug use,
while giving an appearance of state pro-activeness, actually end up
targeting the end users and the small time traffickers, rather than the
powerful cartels which mastermind the operations. The UNODC
observes:
In some countries, notably in India, East and Central Asia,

drug users are routinely sent to drug detention facilities,
without trial or due process for example, on the word of a
family member or police officer for months, or even years.5
Between India and Pakistan, direct trade is minuscule, with trade

relations having been practically cut-off during Partition; subsequent
efforts to re-establish these links have been half-hearted at best.6
However, there has always been considerable unofficial trade
3
Ibid page 14
4
Ibid
5
The War on Drugs: Undermining Human Rights Count the Costs. Retrieved from
http://www.countthecosts.org/seven-costs/undermining-human-rights Accessed on
August 1, 2015.
6
Singh, Gagan Preet. Industrial Growth in Two Border Cities of Punjab. Economic
and Political Weekly L.10 (2015) Economic and Political Weekly. 7 Mar. 2015.
14 SAHR
through re-exporting from third countries, as well as illegal trade or

smuggling. Arms and drug smuggling are a major issue along the
borders of India and Pakistan, particularly in Kashmir and Punjab,
with the Indian Government unequivocally blaming Pakistan for
supplying separatists in these areas with weapons.7
The State of Punjab on the Indian side has been severely afflicted
by the influx of narcotics through the border, with the level of drug
addiction so alarming as to affect an entire generation.8 The State
of Punjab accounts for one-half of the cases in 2013 under the
Narcotic Drugs and Psychotropic Substances Act, 1985.9 Further,
41% of all opium seizures in the country in the same year, amounting
to 964 kgs, were from the Indian State of Punjab.10 The decline in
the agricultural economy and the resulting unemployment have been
seen as contributing factors to the rampant drug abuse in the state.
Another serious problem is the smuggling of fake Indian currency.11

The BSF in India has reported that farmers are drawn into such
7
India: Arms and Abuses in Indian Punjab and Kashmir. Human Rights Watch
Arms Project. (1994) Vol 6 No. 10.
8
Choksi, Mansi. Heroin Trafficking from Pakistan is affecting an entire generation.
Vice News.. (1994), Web, August 1, 2015. Retrieved from: https://news.vice.
com/article/heroin-trafficking-from-pakistan-into-india-is-crippling-an-entire-
generation.
9
Sethi, Abheet Singh. Why Punjab is Indias narcotic haven. The Business Standard.
January 7, 2015, http://www.business-standard.com/article/current-affairs/why-
punjab-is-india-s-narcotic-haven-115010700502_1.html
10
2014: Drug menace reaches alarming proportions in Punjab. The DNA. December
31, 2014. http://www.dnaindia.com/india/report-2014-drug-menace-reaches-
alarming-proportions-in-punjab-2048382.
11
Roy, Vijay C. Spurt in Drug Smuggling from Pakistan via Punjab Border. The Business
Standard. October 2, 2014. http://www.business-standard.com/article/current-
affairs/spurt-in-drugs-smuggling-from-pak-via-punjab-border-114100200955_1.
html
smuggling due to the high returns, facilitated by the easy availability

of Pakistani mobile phone cards, which are impossible to track.12
Without a doubt, the security forces guarding these borders have
their work cut out.
As stated earlier, as a result of various bilateral agreements between

India and Nepal, the border between these two countries is largely
porous, permitting free ingress and egress of people as well as goods.
These borders have remained largely non-hostile, but in recent years
a number of problems are emerging.
In October 2009, the Revised Agreement of Co-Operation between

the Government of India and the Government of Nepal to Control
Unauthorized Trade was signed, under which both countries have
committed to prevent re-exports and imports through their mutual
border. An unfortunate result of this agreement has been a spurt
in cases of harassment of local people by the Sashastra Seema Bal
(SSB)13 and customs officials. The SSB is a paramilitary force that
guards the borders from the Indian side. It was established in 1963
after the defeat of India in the Indo-China war in 1962.14
At a meeting of the joint task force on Nepal-India Border

Management held in February 2015 in Pokhara, Nepal, a number
of criminal activities proliferating along this border were discussed.
These included drug trafficking, arms smuggling and terrorism,
human trafficking, illegal activities by armed groups operational in
12
Singh, Gagan Preet. Industrial Growth in Two Border Cities of Punjab. Economic
and Political Weekly L.10 (2015) Economic and Political Weekly. 7 March, 2015.
13
Gaikwad, Rahi. Locals suffer as India crack the whip on unauthorised cross-
border trade. The Hindu. December 8, 2013 http://www.thehindu.com/todays-
paper/tp-national/tp-newdelhi/locals-suffer-as-india-nepal-crack-the-whip-on-
unauthorised-crossborder-trade/article5435155.ece, August 1, 2015.
14
Read more about the SSB at: http://www.ssb.nic.in/
16 SAHR
India, trading of counterfeit money, child abuse, use of illegal SIM

cards, and religious extremism. Also discussed were the repeated
instances of harassment of Nepali citizens by the SSB. Further, the
unrestricted movement of people has been misused for trafficking
of women and children. Large numbers of girls are trafficked from
Nepal to India for prostitution, and also for onward trafficking to the
Gulf countries and Europe.
Most unfortunately, the porous border between India and Nepal has
been misused by other countries in the region for covert operations
providing financial and arms support to separatist groups on Indian
soil. This has naturally led to an increase in the policing of this
border.15
The SSB also guards the borders between India and Bhutan. In
this region, the security concerns have related mostly in the past to
insurgent groups from the Indian state of Assam allegedly seeking
safe haven in the mountainous and forested areas on the Bhutan side,
and the highly porous border being used for facilitating espionage.
However, the problem is not just one of security against terror
forces. There has been a trend of trafficking of pharmaceutical drugs
viz. pain-killers and anti-anxiety drugs, from India to Bhutan, as
well as heroin (particularly for European markets).16
Insofar as the border between India and Bangladesh is concerned,

smuggling of cattle, weapons, goods like rice, saris, and other items
15
Thapliyal, Sangeeta. Movement of Population Between India and Nepal: Emerging
Challenges. Institute for Defence Studies and Analyses (IDSA). Page 8. https://
www.idsa-india.org/an-aug9-6.html
16
Annual Report 2004-2005, India. Ministry of Home Affairs, Departments of Internal
Security, Jammu & Kashmir Affairs, Border Management, States And Home. New Delhi.
is a major issue. One writer describes the nature of illegal activities

at the Bangladesh border thus:
As against half a dozen legal entry points between the two

countries on this stretch of the border, there are 17 illegal ones,
called ghats. Like liquor vends, these ghats are auctioned and the
ghatmaliks17 set their own rates of commission for permitting
the illegal activity. There is also a loose network of line-men,
agents and carriers who facilitate the smuggling of cattle, rice,
shimmering nylon saris and Phensedyl (a cough syrup that
serves as a narcotic drug) across the barrier.18
The flourishing illegal trade in Phensedyl, a codeine-laced cough

syrup made in India that is illegal in Bangladesh, is particularly
serious. It is reported that between January 2009 and September
2010,nearly two million bottles of Phensedyl were seized.19
However, the biggest concern remains the influx of migrants from

Bangladesh into India in search of livelihood, safe haven, or simply
because of the close socio-cultural ties between the two countries.
Large sections of the border between India and Bangladesh have
been fenced, and much of it has also been electrified.20 The Indian
governments anxiety about illegal immigration from Bangladesh
is linked to concerns that insurgent groups demanding self-rule in
17
Ghatmaliks are port-owners controlling the trade.
18
Rai, Usha. No-womans land. The Hindu, 15 May 2011, http://www.thehindu.
com/todays-paper/tp-features/tp-sundaymagazine/nowomans-land/article2020264.
ece , 17 March 2015.
19
The War on Drugs: Undermining Human Rights Count the Costs. Retrieved
from http://www.countthecosts.org/sites/default/files/Human_rights_briefing.pdf.
Accessed on August 1,2015
20
Gokhale, Nitin A. Personal Interview dt. 31.03.15
18 SAHR
various North East States have sought sanctuary across the border,
particularly around the State of Tripura, which is engulfed within
Bangladesh.
Human trafficking across the India-Bangladesh border is rampant.

Although information regarding incarceration of Bangladeshi
nationals in Indian jails is difficult to confirm, there are reports that
many end up incarcerated in jails with little recourse to justice.
It is important to recognise that once channels are established for

drug trafficking across borders, these same channels are then opened
up for other kinds of trafficking - arms, human trafficking, smuggling
of licit and illicit goods, etc. As one writer observes:
Drug trafficking facilitates other organised criminal enterprises

such as human trafficking and gun running, all of which use
the same networks and routes to smuggle people, arms and
contraband.21
Therefore, the need to crackdown on drug trafficking in the border

areas, and thereby prevent the criminalization of these areas in
their entirety, cannot be denied. At the same time, as we find in the
examination subsequently, the vesting of special powers in the security
forces in these areas has, unfortunately, resulted in widespread and
ubiquitous human rights violations by these same forces.
21
Das, Pushpita. Drug Trafficking in India: A Case for Border Security
Institute for Defence Studies and Analysis, http://www.idsa.in/system/files/OP_
DrugTraffickinginIndia.pdf, May 2012.
iii
Human Rights Violations by Security

Forces Against Local Populations in the
Border Areas
In this section we examine the different kinds of abuses of human
rights which take place at border areas at the hands of security forces
against the local populations, both in the home country, and in some
cases across the border. The nature, extent and intensity of these
violations depend upon the intensity of the hostility, if any, between
the nations concerned, the physical characteristics of the border,
and the nature of the security threat sought to be addressed. Thus,
different problems arise in different areas and contexts.
However, without exception, we find that there is a marked tendency

to overlook the excesses of security forces in the border areas, in
light of the purported objective of securing the national boundaries.
Thus we find an overarching fidelity to the national interest, rather
than to ensuring that criminal acts are brought to justice. As a result,
many of the actions of the security forces in these areas, which would
have met with unambiguous approbation in other circumstances, are
normalized in the border areas in the larger interests of the nation
in protecting its borders. Naturally, this has serious consequences on
the quality and security of life of the people inhabiting these areas,
and on the rule of law in particular.
20 SAHR
Hyper Securitization at Borders, such as Fencing,

Electrification, etc.
As stated earlier, where demarcation of borders between countries is
disputed, or where infiltration is perceived as a high security threat,
there is a significant concentration of security forces, including
armed forces and paramilitary forces, at the border areas. This has
important implications for the populations which live along and
around such borders.
The border between Pakistan and India is highly contested,

and according to some reports has been dubbed one of the most
dangerous borders in the world. Not surprisingly, therefore, efforts to
fence this border have been made intermittently over the years, with
uneven success. India has installed about 0.15 million floodlights
and fencing along its border with Pakistan. Almost the entire stretch
is to be fenced (apart from a few areas which cannot be fenced due to
topographical reasons), and also electrified. In fact, the entire fencing
installed along the border in Kashmir has been electrified. The
electrification is done in such a way that electrocution of people and
animals who stray into the fence in normal circumstances would
be difficult. There are two layers of fencing, with the inside fences
being electrified, while the outer perimeter is not electrified. As part
of what is known as the Anti Infiltration Operating System (AIOS),
the fences are supplemented with a system for alerting through
sirens, etc. in case the systems on the outer perimeter are tripped,
which are a signal for the soldiers to start moving in. Despite these
precautions, incidents of electrocutions have occurred in the past.1
The Pakistan-India border also has a number of pre-existing

landmines, remnants from previous wars, which have still not been
1
Gokhale, Nitin A. Personal interview dt. 31.03.2015.
successfully defused despite several de-mining initiatives on both

sides.2
The governments do not release information regarding the

concentration of armed forces in the region. However, according
to estimates there are at any given time 500,000 to 700,000 armed
forces personnel in Kashmir on the Indian side alone, making it one
of the highest densities of armed forces in the world.
This has tragic consequences for the people of the area, who have close
familial and cultural links with the population on the other side of the
border. To many, the border is an external and artificial imposition
which obstructs the interaction between families and clans on either
side, as well as traditional trade relations. The electrification of the
borders supplemented by vigorous army patrolling has resulted in
tremendous hardships for the people living in the area, even as no
sustainable solution appears to be in sight in the near future.
It is reported that along the Rajasthan border, there are live landmines
along areas as long as six to eight kilometers, on cultivated and
uncultivated farmlands, and in close proximity to infrastructure in
the villages, which have resulted in casualties. These landmines were
laid prior to the establishment of the International Border, and de-
mining operations were not entirely successful. As a result, landmines
continue to be found and cause casualties even after all these years.3
The border between India and Bangladesh is perceived as being

a significant security threat because of the large numbers of
undocumented migrants crossing over into India from Bangladesh
for a variety of reasons, and the numerous armed insurgent groups
2
Ibid
3
Ibid
22 SAHR
from India who seek haven on the Bangladesh side of the border.
As a result, half of the border is already fenced, with most sections
consisting of parallel barbed-wire fences, some of which are
electrified.4
The security personnel along these borders are also on constant

high-alert, with the situation escalating when the political relations
between the countries become tense.
The move to fence the border between the two countries has led to
a further escalation of problems for villagers living near the borders.
According to a 2010 Human Rights Watch report:5
The Indian government says it is seeking to contain the

smuggling and mass economic migration from Bangladesh.
In recent years, India has also alleged that separatist militants
in its northeastern states find sanctuary in Bangladesh and
cross into India to perpetrate terrorist attacks. However few
of those killed by the BSF have ever been shown to have been
involved in terrorism. In an effort to secure the border the
Indian government is constructing a large 3,200 kilometer
fence. But in densely populated areas of the border, where land
is cultivated right up to the international boundary, the border
fence is already exacerbating the problems faced by residents of
the border areas.
4
Lewis, Martin. Indias Second Most Dangerous Border Geocurrents May 26, 2011.
Retrieved on 17 March 2015 from: http://www.geocurrents.info/geopolitics/
india%e2%80%99s-second-most-dangerous-border
5
Human Rights Watch. Trigger Happy: Excessive Use of Force by Indian Troops
at the Bangladesh Border. 2010, https://www.hrw.org/sites/default/files/reports/
Bangladesh_1210_web.pdf.
Traditional social and economic associations among the local

populations transcend these geopolitical borders. There are
innumerable instances of people crossing over these borders
intentionally, knowing full well the risks involved, because of
economic pressures and because of traditional usufruct in the areas
across the borders. Examples abound of people who find their lives
and lands truncated by these border fences, with families, lands, and
grazing areas becoming fragmented. In some areas, permission has
to be sought from the border security forces to access agricultural
fields on a daily basis, with curfew-like conditions being imposed.
Sometimes the permission is refused for security reasons, and this
can be particularly crushing during sowing and harvesting seasons.
Cattle often stray on to the other side of the border, with disastrous
results. These are just a few examples of the myriad implications
and unintended consequences of increased militarization across the
India-Bangladesh border.
Abuse of Power by Security Forces at the Borders

Apart from the State of Jammu & Kashmir, the border between
India and Pakistan also traverses the Indian States of Rajasthan,
Gujarat and Punjab. Here the problems faced by local populations
are different, but no less important. These borders are policed on
the Indian side by the BSF. On both sides, people live under the
constant threat of being attacked by the forces across the border. This
is compounded by the omnipresent fear that the security forces on the
same side of the border might evacuate inhabitants without warning,
in response to an escalation in hostilities elsewhere. The villagers
on the Indian side in Rajasthan have reported that the BSF often
uses private farmlands for different kinds of operations, demanding
that the local people cooperate. Often, standing agricultural crops
get stampeded on, while important infrastructure such as wells and
24 SAHR
pumps are carelessly run over, and farm animals and cattle become
collateral damage. Reparation and compensation are rare.6
The border between the two countries along the State of Punjab
has seen several instances where lands have been taken away from
farmers under the Border Area Development Programme. They
have been waiting for the compensation promised by the Centre
for over fifteen years. The farmers claim that after receiving just
one payment we were told that funds had been exhausted.7 The
construction of fences has escalated state acquisition of private lands,
as large areas of land have been acquired for the areas between the
fences. In many instances the fences actually pass through individual
land-holdings, bisecting them into two parts on either side of the
border. In order to access land on the other side of the fence the
landowners have to obtain permits from the BSF on a daily basis,
which must be deposited by 6:00 p.m. Failure to do so within the
stipulated time results in a hefty fine.8 Given these circumstances,
it is not surprising that there are so many restrictions on the buying
and selling of land in border areas.
It is reported that security forces stationed in border areas also recruit

locals as spies to be sent into the bordering districts. Usually these
recruits belong to marginalised sections of the community who are
particularly vulnerable, making it easier to strong-arm them into
performing their duty towards their country. The recruitments are
unofficial, leaving local recruits completely stranded in the event they
are caught on the other side of the border. They can face long years
6
Gill, Bani. (2012) Border Dialogues. Peace Prints: South Asian Journal of Peace
building. Vol. 4, No. 2
7
Bajwa, Harpreet. Ryots at Punjab border suffer as government looks the other way.
The New Indian Express. May 6, 2013.
8
Gokhale, Nitin A. Personal interview at 31.03.15
of incarceration in foreign prisons where their status is precarious,

while their recruiters refuse to take any responsibility, even breaking
promises made to look after their families in their absence.9
It is well documented that at the border between Bangladesh and

India, the Indian BSF commits serious human rights violations
under the pretext of curbing illegal activities. People who cross over
for livelihood reasons are harassed, assaulted, tortured and even killed
by these forces. It has also been reported that BSF soldiers have been
seeking sexual favours from women in exchange for letting them
cross over.10
Killings along the 4096.7km long Bangladesh-India border by the

Indian BSF are not uncommon. According to Odhikar, a Bangladeshi
human rights organisation, in the fourteen years between 2000 to
2014, approximately 1,035 Bangladeshis were killed by the BSF, 919
were tortured and 1,274 were abducted. Additionally, in the first six
months of 2015, a total of 23 Bangladeshis had reportedly died at
the hands of the BSF, while 35 were injured and 17 abducted.11
Unofficial reports have revealed a clandestine military campaign in

the border region named Operation Pushback, under which people
9
Indian SSB Men Rape Nepali Girl En Masse, Nation Stunned. Review. Telegraph
Nepal 2012: http://sajha.com/mobile/info.cfm?threadid=97378&noofposts=2
10
Rehman, Azeera. On India-Bangladesh Border, Sex and Smuggling Are
Intertwined. Yahoo News India. IANS, 17 Apr. 2011, http://twocircles.
net/2011apr17/indiabangladesh_border_sex_and_smuggling_are_intertwined.
html#.WEkngLJ97IU
11
Chowdhury, Syed Tashfin. Acquittal of India border guard in Bangladeshi girls
killing rekindles human rights concerns. Asia Times. July 10, 2015, https://www.
google.lk/search?q=Acquittal+of+India+border+guard+in+Bangladeshi+girl%E2%8
0%99s+killing+rekindles+human+rights+concerns&oq=Acquittal+of+India+border
+guard+in+Bangladeshi+girl%E2%80%99s+killing+rekindles+human+rights+concer
ns&aqs=chrome..69i57.1226j0j7&sourceid=chrome&ie=UTF-8
26 SAHR
are abducted during the night, harassed, and left on the other side of
the border, sometimes even killed.12
As will be examined in greater detail below, these security forces

enjoy a high degree of immunity under special legislations, leading
to an atmosphere of impunity. Instances where the security forces
are held accountable for the overreach of their powers are rare, and
in any case remain unreported, leading to a further reinforcement of
the perception that they are immune from prosecution.
As stated above, the border between India and Nepal, guarded by

the SSB, has resulted in harassment, gang rapes, kidnapping, and
abductions of locals as their livelihood activities have been labeled
as illegal trade.
Box 1: CASE OF DANG VILLAGE

(article extracted from the Kathmandu Post GH)
Indian excesses trigger exodus
DURGALAL KC
DANG, June 2, 2009 - More than 2,000 people from 22 bordering villages
of Dang district have already fled their homes fearing persecution and
sexual harassment from Sashastra Seema Bal (SSB), the Indian border
security force, and various other armed Indian groups.
The displaced continue to swarm a community forest of Satbariya VDC-

2 in Deukhuri region. The victims say there was no option but to flee the
continued harassment, abduction, rape and robbery.
12
Gautam, Navlakha. Bangladeshis in India in States, Citizens and Outsiders: The
Uprooted Peoples of South Asia. Ed. Tapan Bose and Rita Manchanda. Kathmandu:
South Asian Forum for Human Rights, 1997.
The latest abduction victim, 19-year-old Krishna Thapa of Khir village

of Rajpur VDC-9, was reportedly abducted by an armed group on May
18. Villagers allege Thapa has been kept in a house across the border and
is being sexually abused.
It has been over a year since Rana Bahadur B.K., 58, of Khangra village
of Rajpur VDC-7 lost two of his daughters. B.K. said his daughters were
visiting their elder sister at Satbariaya but never returned. I now hear
that both my daughters have been sold in India. I dont know when I will
see them, he said.
Seventeen girls have disappeared from bordering Patauli, Sunpathri
and Kalyani areas in the last three years. They raid our homes and take
away our women. When we try to protest they threaten to kill us, said
Prakash Pun of Rajpur VDC-9. We cant do anything.
Very few abducted women return. Most of them fall prey to SSB men
and other Indian criminal outfits while collecting fodder and firewood in
the forest. We either have to submit or be shot dead, said Lila Gharti of
Biruwa village at Bela VDC-2. Even going to bordering Indian villages
to buy foodstuff and essentials has now become a horror.
In the name of interrogation, SSB men keep our women captive for
months and abuse them, said Krishna Gharti of bordering Gobardiha
village. Men are usually freed after some roughing up, but they keep the
women. He said things have worsened in recent days. With no one
around to protect us we eventually decided to flee.
The Indian side has set up SSB units along the Nepal-India border at
every 10 metres, but there are no such security provisions on the Nepali
side. Instances of crime and encroachment of Nepali land in Dang
district have gone unattended due to absence of any mechanism to keep
a tab on border security.
Displaced villagers have demanded that the government set up border
security camps in their villages immediately so that they can return
home.
28 SAHR
Chief District Officer Rishiram Dhakal said border security camps can
only be established after inspecting the border region. Weve heard
about the plight of these villagers and the concerned ministry has also
been informed. Well shortly be sending a fact-finding team.
The table below, an illustrative list of incidents of human rights

violations by the SSB in recent years, has been compiled from news
reports and other sources.
Table I: Illustrative List of Incidents of human rights

violations by SSB at Indo-Nepal Border
Date of Incident
reporting &
Location
8.12.2013 News report13 detailing abuse and interruption of

work by the SSB. One interviewee, Sahbabu Patel
Raxaul/Birganj
stated:
(India/Nepal)
They stop our tractors. Even if you show them the
documents, they still abuse us. They call us Maoists,
terrorists, China ka admi [China sympathiser].
Another resident, Jagdish Shah Turaha, stated:
The first thing they do is start using abusive words
and beating us. If we are crossing the camp we have to
get off from our motorcycle and walk.
13
Gaikwad, Rahi. Locals Suffer as India, Nepal Crack the Whip on
Unauthorised Cross-border Trade. The Hindu [Raxaul/Birganj] 8 Dec.
2013.
25.4.2012 News report14 regarding gang rape by SSB of Kanchan

Tamang, aged 20 years, a resident of Prangbung VDC-
Taplejung
3, who had gone towards the bordering area known as
District, Nepal
Char-Rate along with her six brothers and sisters and a
friend. According to one of the accompanying persons:
Kanchan was taking photographs while having
food with her brothers and sisters. The SSB from a
nearby post all of a sudden arrested her. After she
was arrested we ran away. We informed the villagers
about her arrest. The villagers made a group and went
towards the SSB post. A completely naked Kanchan
was later released from the post.
10.8.2011 News report15 detailing another incident of SSB
harassment of locals during transit, states that the
Manebhajang,
villagers are particularly unhappy with the way the
at the border
SSB is frisking their vehicles and luggage. One local
between Nepal
is quoted as saying:
and Darjeeling
We are being treated as terrorists. They (SSB) are
checking our vehicles and luggage with suspicion.
But it must be remembered that we are local residents
who are residing here since generations.
Another local resident, a vegetable trader, is quoted
as saying:
The SSB behave rudely with us in a drunken state.
They detain our vehicles carrying vegetables for long
hours and even demand money in some cases.
14
Indian SSB Men Rape Nepali Girl En Masse, Nation Stunned. Telegraph
Nepal 2012.
15
Gazmer, Deep. Villagers in Hills Protest SSB torture The Times of India.
Darjeeling. 10 Aug. 2011.
Durgalal, KC. Indian Excesses Trigger Exodus. The Kathmandu Post HC.
2 June 2009.
30 SAHR
2.6.2009 According to a news report,16 more than 2,000

people from 22 bordering villages of Dang district
(See Box)
fled their homes fearing persecution and sexual
Dang District, harassment from the SSB and various other
Nepal armed Indian groups. Krishna Gharti of bordering
Gobardiha village reportedly stated:
In the name of interrogation, SSB men keep our
women captive for months and abuse them.
26.11.2008 A news report17 stated that seven SSB personnel
were accused of gang rape, this time on the Indian
Shravasti
side of the border
District, UP
Source: compiled as part of the present study from news reports.
These incidents are extremely serious and clearly demonstrate the

sense of impunity with which the SSB operates. This writer, however,
did not find any reports to demonstrate that any effective steps have
been taken by the Governments on either side of the border to hold
the security personnel accountable for their criminal actions. No
small part in this state of affairs is played by the special protections
provided to the SSB under a variety of statutes, which are examined
later below.
Cross Border Violations by Security Forces

Although the evidence is skeletal at present, there does appear to
be a disturbing trend of security forces crossing over borders and
committing human rights violations on the other side of the border.
16
Section 8 of the Jammu & Kashmir Public Safety Act, 1978 (PSA), under
chapter IV titled Powers to make orders detaining certain persons.
17
Durgalal, KC. Indian Excesses Trigger Exodus. The Kathmandu Post HC.
2 June 2009.
Since these are often in the guise of operations, these security forces
cannot be held to account under any law for such violations.
The SSB also has a significant presence along the border between
India and the Kingdom of Bhutan. This highly porous border has 16
battalions and 153 outposts of the SSB.18
It is reported that several leaders of the United Liberation Front of

Assam (ULFA) went missing after this Operation, and remained
missing for several years. In 2007, when the whereabouts of these
individuals were yet unknown, their wives went on an indefinite
hunger strike to force the state to disclose information. The protesters
were arrested for attempted suicide. Finally in 2011, almost eight
years later, it was found that these missing persons had been in the
custody of the Bhutanese Army all along.19
Another important factor is that the SSB, which administers Indias

borders with Bhutan and Nepal, also has an intelligence unit of its
own. In December 2014 the Home Ministry of the Government
of India decided to double the strength of the intelligence unit of
the SSB, and to equip it with state-of-the-art equipment. While
the purported objective is to help counter terrorist and espionage
activity, both from the northwestern frontier and of northeastern
insurgents, the increased vigilance raises major concerns regarding
violation of privacy of people living in these areas. In recent years,
18
According to the official website of the SSB,
http://www.ssb.nic.in/index1.aspx?lid=9&lsid=37&pid=18&lev=2&langid=1&C
id=0 See also, Parliament of India, Rajya Sabha Secretariat. Department-Related
Parliamentary Standing Committee On Home Affairs One Hundred And Twenty
Third Report On Sashastra Seema Bal Bill, 2006. New Delhi.
19
Missing ULFA Leaders in Secret Custody of Bhutan Times of Assam 13 May 2011,
https://www.timesofassam.com/headlines/missing-ulfa-leaders-in-secret-custody-
of-bhutan/ .
32 SAHR
there are reports of harassment by security personnel on the Bhutan

side, targeting those coming in from India to meet their relatives
in Bhutan. To date, the SSB has deployed 29 battalions with 471
outposts on the India-Nepal Border.20
Declaration of vast areas as Disturbed along the Borders

The application of the J&K Armed Forces Special Powers Act
(AFSPA), 1990 allowed the Indian government to declare the entire
region of Kashmir a disturbed area. A detailed examination of this
law is discussed later in this report. For now, it may be noted that
apart from enabling the active presence of the Indian armed forces
in the region and vesting them with enormous powers of arrest,
entry into property, search and seizure, this law also permits the
armed forces personnel to shoot to kill in specified circumstances.
The law also lays down special procedures to be followed in case
armed forces personnel are to be prosecuted for any wrongdoing. In
addition to the AFSPA, the armed forces and paramilitary forces
in Kashmir are under special legislations which govern both their
internal functioning as well as the mechanisms for accountability.
Civil society organizations in the Kashmir region as well as

human rights groups from other parts of India have methodically
documented the systematic abuse of power by the armed forces in
Kashmir, in an attempt to counter the increasing normalisation
of such excesses in the purported interest of national security. A
detailed examination of these documents is neither necessary nor
required for the purpose of the present study. It would, however, be
20
According to the official website of the SSB, last accessed on 26.5.2016 http://www.
ssb.nic.in/index1.aspx?lid=9&lsid=37&pid=18&lev=2&langid=1&Cid=0
useful to look at an indicative list of the kind of human rights abuses

which are ubiquitous in the area:
Arbitrary arrests21 and unlawful detention;
Use of repealed terrorism laws,22 and cases registered many
years previously, to arrest and detain people contrary to the
extant laws;23
Use of torture as a tool for spreading fear and oppression
among the local populations;24
Custodial killings in armed forces custody, many times
preceded by unlawful arrests, illegal detention, and torture;25
Killings of civilians in firings without following the due
process of law, such as the provisions of the Criminal
Procedure Code, 1973 regarding firing upon unlawful
assemblies; 26
Extrajudicial killings, also known as fake encounters;27
21
Amnesty International. India: Punitive Use of Preventive Detention Legislation in
Jammu and Kashmir. 2000. Index: ASA 20/10/00, https://www.amnesty.org/en/
documents/asa20/010/2000/en/ .
22
This includes the Terrorism and Disruptive Activities (Prevention) Act, 1987 which
ceased to be in force after it came under a cloud of criticism regarding its misuse in
1995.
23
Amnesty International. India: Abuse of Public Safety Act in Jammu and Kashmir.
2000. Index ASA 20/13/00
24
Ibid.
25
Human Rights Watch. The Human Rights Crisis in Kashmir June 1993.
26
Ibid.
27
Human Rights Watch. Indias Secret Army in Kashmir. May 1996.
34 SAHR
Enforced disappearances, which is a severe problem in the

State of J&K, and has in recent years been compounded by
the discovery of unmarked graves in huge numbers;28
Denial of basic rights, such as medical attention, while in
custody;29
Using people as human minesweepers;30
Use of children as Special Police Officers and as child
soldiers;31
Use of rape and sexual violence as a tool of asserting
domination over the local population.32
The high concentration of armed forces in the area, as well as the

environment of impunity with respect to human rights violations
committed by armed forces personnel, have resulted in tremendous
suffering for the people of Kashmir.
28
Amnesty International. Disappearances in Jammu and Kashmir. 1999.
29
Amnesty International. India/Kashmir: Remaining prisoners of conscience should
be released immediately. 2000.
30
Human Rights Violations in Jammu and Kashmir- A report. The Outlook. March
19, 2001.
31
Child Soldiers International. India: Shadow Report to the Committee on the
Rights of the Child. August 2013, https://www.child-soldiers.org/Shop/india-
shadow-report-to-the-committee-on-the-rights-of-the-child-1 .
32
Asia Watch and Physicians for Human Rights. Rape in Kashmir: Crime of War.
Vol 5, Issue 9. Retrieved from: http://www.hrw.org/sites/default/files/reports/
INDIA935.PDF Accessed on August 15, 2015.
Tribal areas of Pakistan
In the Federally Administered Tribal Areas (FATA) region, the

population comprising 4 million people has been denied the full
civil and political rights enjoyed by other Pakistanis, as a result
of the differentiated treatment of tribal areas under the Pakistan
Constitution33. All the social and economic indicators in FATA
are the lowest compared to anywhere else in Pakistan. Illiteracy,
unemployment and criminality are remarkably high compared to
the rest of Pakistan. Lack of economic opportunities and corruption
have deeply divided the local tribes and stunted their development.34
The region is contiguous with tribal areas in Afghanistan, and despite
their separate governments these regions are intrinsically connected
as a result of clan or tribal identities which in turn are vulnerable to
pressures from armed groups.
Maritime Borders and the Impact on Fisher-folk
The maritime borders are also highly securitized, and this impacts
traditional fishing practices in these waters.35
33
The governance of FATA is theoretically based on Frontier Crime Regulations
(FCR) designed and implemented by colonial government in British India in 19
Century. The Ministry of States and Frontier Regions (SAFRON) at federal level
has been assigned the task to keep a close watch on certain issues of management,
development and other related matters across the FATA, Ullah, Altaf (2015)
Governance reforms in Federally Administerd Tribal Areas (FATA) of Pakistan: Past
and Present, Journal of Political Studies, Vol. 22, Issue - 1, 2015, 215:235, http://
pu.edu.pk/images/journal/pols/pdf-files/14%20-%20ALTAF_22_2015.pdf
34
Neil, Alexander. Towards Cross-Border Security. Page 21: Royal United Services
Institute (RUSI), 2010.
35
Gupta, C & Sharma, M. Bonded Bodies: Coastal Fisherfolk and National Anxieties
in South Asia, http://www.ssvk.org/pdf_doc_files/ssvk_study_coastal_fisherman.
pdf
36 SAHR
Traditional fishing practices along the maritime border between

India and Sri Lanka are continuing till today, and Tamil fisherfolk
from India regularly cross over the maritime border in order to fish
in the abundant reserves around the Katchatheevu island.36 Indian
fisherfolk arrested on the Sri Lankan side are released from time to
time based on the political environment in these countries.37
Pakistan and India also have a fractured history of disputes over the
maritime border. The dispute relates to a 96 km tidal estuary strip of
water38 known as the Sir (Seer) Creek, which lies between Gujarat
in India, and Sindh in Pakistan. Fisherfolk from both sides of the
border have been fishing in Sir Creek for centuries. However, now
that it is a disputed territory, according to some commentators, a large
number of arrests for maritime issues between the two countries take
place in this area.39 These fishermen are arrested at mid sea, charged
with violation of the maritime border and Exclusive Economic Zone
(EEZ), detained and sent to jail. Maritime Security Agency (MSA)
in Pakistan and Indian Border Security Force (IBSF) are the two
bodies which conduct these arrests.
36
Gupta C (2007).Bonded Bodies: Coastal Fisherfolk,Everyday Migrations and National
Anxieties in India and Sri Lanka, http://www.academia.edu/2185111/Bonded_
Bodies_Coastal_Fisherfolk_Everyday_Migrations_and_National_Anxieties_in_
India_and_Sri_Lanka (Accessed on 4 November, 2016); Also see The maritime
boundary between India and Sri Lanka stands settled Minister Bogollagama,
http://www.mfa.gov.lk/index.php/component/content/1396?task=view
37
PTI, Sri Lanka frees 34 Indian Fishermen May 16, 2016, http://indianexpress.com/
article/india/india-news-india/sri-lanka-frees-34-indian-fishermen-2803988/; PTI,
Jayalalitha writes to Modi to get fishermen released from Sri Lanka June 7, 2016,
http://indianexpress.com/article/india/india-news-india/tamil-nadu-fishermen
-captured-sri-lanka-navy-jayalalithaa-modi-2834534/; TNN, Sri Lanka releases
73 Indian fishermen from prison, July 27, 2016, http://timesofindia.indiatimes.
com/city/madurai/Sri-Lanka-releases-73-Indian-fishermen-from-prison/
articleshow/53407768.cms
38
In some writings this is described as a one hundred nautical mile strip.
39
Gokhale, Nitin A. Personal interview dt. 31.03.15
Yet the fisherfolk continue to fish in these waters, taking calculated

risks weighed against the potential compensation from the abundant
catch available. The security forces on both sides tend to turn a blind
eye or take strict action depending upon whether the hostilities
between the two countries are in ebb or flow. When caught, however,
the plight of these fisherfolk is pitiable, and sometimes they are
charged under special laws relating to terrorism.
Unfortunately, since they are arrested by a hostile foreign country,

their situation becomes precarious. There are no mechanisms in
place to inform the family of the arrest of these fisherfolk, and bail
is out of the question, as more often than not there is no one to take
responsibility for them (for fear of terrorist or other negative links).
Moreover, such arrests also result in impounding or even destruction
of the boats involved, leaving people with no source of livelihood
even if they manage to get out of prison and return to their own
country. In case of release, these individuals often do not have the
economic resources or wherewithal to return to their country as a
result of which they undergo numerous hardships.40 There are also
instances of deaths in custody, where there can be considerable delay
in handing over the bodies to the family members for the last rites.
According to the Pakistan Fisherfolk Forum (PFF), in October

2014, there were 241 Pakistani fisherfolk in Indian custody, while
there were 400 Indian fisherfolk in Pakistani jails.41 Since then, 113
Indian fisherfolk were released from Pakistani prisons in June 2015,42
40
Munir, Sarah. Fisherman of Pakistan and India: in enemy waters.October 26,2014.
The Express Tribune, Sunday Magazine. October 26, 2014, https://tribune.com.pk/
story/779338/fishermen-of-pakistan-and-india-in-enemy-waters/ .
41
Khan, Zafar A. 150 Pakistani Fishermen in different Indian jails, Daily Balochistan
Express, December 13, 2016, http://www.bexpress.com.pk/2016/08/150-pakistan-
fishermen-in-different-indian-jails/
42
PTI. Pakistan Releases 113 Indian Fishermen on Ramzan. NDTV. June 18, 2015.
38 SAHR
and a further 163 fisherfolk in August 2015.43 However, on October

4, 2015 one hundred Indian fisherfolk were arrested and imprisoned
in Pakistan. According to the National Fishworkers Forum, as of
November 2015 there are about 239 Indian fisherfolk in Pakistani
prisons.44 Prisoners have also been released from time to time.45
Government reports, while giving different numbers, also

acknowledge that there is a large number of prisoners in custody
on both sides. According to government reports released by the
Government of Pakistan, in January 2015 there were 50 prisoners
for civil offences and 476 Indian fisherfolk in Pakistan prisons. The
Government of India stated that it had 253 Pakistani prisoners for
civil offences and 132 Pakistani fisherfolk in custody.46
43
PTI. Pakistan releases 163 Indianfishermen. The Indian Express. Karachi. August
2, 2015, http://indianexpress.com/article/india/india-others/pakistan-releases-163-
indian-fishermen/ .
44
Dominique, Bosco. 650 Indian fishermen languish in jails of Sri Lanka, Bangladesh,
Myanmar says federation The Times of India. November 4, 2015, http://timesofindia.
indiatimes.com/india/650-Indian-fishermen-languish-in-jails-of-Sri-Lanka-
Pakistan-Bangladesh-Myanmar-says-federation/articleshow/49663856.cms .
45
India releases 16 Pakistani prisoners. The Dawn. August 8, 2015.Lahore, https://
www.dawn.com/news/1199234 ; PTI. India releases 88 Pakistani fishermen as
goodwill gesture during Ramadan. The Indian Express. June 19, 2015, http://
indianexpress.com/article/india/india-others/india-releases-88-pakistani-
fishermen-as-goodwill-gesture-during-ramadan/ .
46
PTI. 352 Indian prisoners lodged in Pakistan jails: Government. The Times of India.
May 04, 2015, http://timesofindia.indiatimes.com/india/352-Indian-prisoners-
lodged-in-Pakistan-jails-Government/articleshow/46456511.cms; PTI. As many
as 516 Indian Fishermen in Pakistani Jails: Government, The Indian Express,
December 7 2016, http://indianexpress.com/article/india/as-many-as-516-indian-
fishermen-in-pakistan-jails-government-4415621/; PTI. 518 Indians, including
463 fishermen, in Pakistan jail The Hindu, July 1, 2016, http://www.thehindu.
com/news/international/518-Indians-including-463-fishermen-in-Pakistan-jails/
article14465377.ece
The plight of those in custody in foreign prisons, whether for

violating maritime boundaries, or otherwise, is deplorable in both
countries. Reports of atrocities by both sides have been covered
widely in the media. In an unfortunate turn of events in March 2013,
Sarabjit Singh, an alleged Indian spy on death row in Pakistan, was
brutally attacked by other inmates and killed. In retaliation, inmates
in a Jammu prison brutally attached Sanaullah Ranjay, a Pakistani
prisoner, who succumbed to his injuries six days after the attack.47
When deaths in custody take place, there is no mechanism to ensure
that these were not the result of natural causes. The cause of death of
Bikha Lakha Siyal, a fisherman incarcerated in a Pakistani prison, in
December 2013, remained unknown, and his body was not returned
to the Indian authorities for a long time. In February 2014, an Indian
fisherman, Kishore Bhagwan, died in a Pakistani prison. Pakistani
media reported that post-mortem reports showed signs of assault.48
In February 2015, the 172 Indian fishermen released from Pakistan,
claimed that the cause of death of the three fishermen who had died
in custody was lack of proper care and treatment.49
Conditions in prisons in both countries are abysmal, with complaints
of poor food and drinking water, lack of healthcare, and systemic
violence. There have also been instances of persons being incarcerated
for periods far exceeding the sentence. In several cases, individuals
spend years or decades in prison while the punishment may have
47
Kanwar, Shimona. Sanaullah follows Sarabjits horrifying route to death. The
Times of India. May 10, 2014, http://timesofindia.indiatimes.com/india/Sanaullah-
follows-Sarabjits-horrifying-route-to-death/articleshow/19977868.cms
48
Panwar, Preeti. Indian prisoner Kishore Bhagwan found dead in Pak Jail. One
India. February 4, 2014, http://timesofindia.indiatimes.com/india/Indian-prisoner-
found-dead-in-Pakistani-jail-Report/articleshow/29858422.cms .
49
3 Indian Fishermen Died in Pakistan Jail Due to Lack of Treatment. The New
Indian Express. 17 Feb. 2015, http://economictimes.indiatimes.com/news/politics-
and-nation/3-indian-fishermen-died-in-pak-jail-due-to-lack-of-treatment/
articleshow/46275646.cms .
40 SAHR
only been for a couple of months, as the prisoners from these

countries are generally not released without a joint consultation. For
instance, a prisoner in India, Yasin, hailing from the city of Multan
in Pakistan was released after 21 years, although he was sentenced to
six years imprisonment.50
Civil society organisations such as the PFF have demanded a visible

demarcation of the border at Sir Creek, and declaration of a buffer
zone of 50 nautical miles on either side as a fishing zone. However,
these demands have gained no traction as control over the creek has
important implications on the energy potential of each nation. There
can be no rationale, however, for the failure to accede to their demand
that representative organizations of fisherfolk in both countries be
informed when arrests take place, so that family members can be
alerted in time.
Similar to the above, there are unresolved issues with regard

to the maritime boundaries between Bangladesh and India.51
Comparatively, Bangladeshs coastline is narrower. Its people have
historically been seafarers. The limited land-based food and fuel
resources available to them, and the disparity between resources and
subsistence needs of a large population as well as negative impact
of climate change make it imperative for Bangladesh to recognise
the potential of oceans as a tangible promise for the future. Thus the
government enacted the Territorial Waters and Maritimes Zones
Act, 1974. This Act, however, did not specify the breadth of the EEZ
of Bangladesh in the Bay of Bengal in clear-cut terms.
50
Released Indian and Pakistani Prisoners Describe Trauma. BBC News. South Asia.
April 20, 201, http://www.bbc.com/news/world-south-asia-13043478.
51
Sharma, M & Gupta, C. Need for coastal Integration in South Asia, the Hindu,
October 21, 2009, http://www.thehindu.com/opinion/lead/need-for-coastal-
integration-in-south-asia/article36840.ece;
The delimitation of maritime boundaries has created a conflict

between Bangladesh and its neighbours. Disagreement arose mainly
with India when Dhaka in 1974, signed contracts to share production
with six international oil companies, granting them oil and natural
gas exploration rights in its territorial waters in the Bay of Bengal.
The Bangladesh line moved towards the south from the edge of
the countrys land boundary, while the Indian line took a south-
easterly direction, thus creating an angle within which lie thousands
of square miles of the Bay, claimed by each country as its economic
zone. This overlapping claim has become a critical problem between
the two neighbours. For example, the territorial sea, the EEZ, and
the continental shelf will depend on how this dispute is resolved.
Consequently, it is fishermen who take the brunt of these disputes.52
Stateless People
Article 1 of the UN Convention relating to the Status of Stateless

Persons defines a stateless person as
a person who is not considered as a national by any State under

the operation of its law.
Further, Article 12 of the Convention requires that
52
Bandyoupadhyay, K. Fishermen languish in Bangladeshi jail, West Bengal unaware
of new maritime border The Times of India, November 29, 2014, http://timesofindia.
indiatimes.com/india/Fishermen-languish-in-Bangladeshi-jail-West-Bengal-
unaware-of-new-maritime-border/articleshow/45314610.cms; Our correspondent,
16 Bangladeshi Fishermen land in jail, The Independent September 24, 2015,
http://www.theindependentbd.com/printversion/details/17015; A correspondent,
57 Fishermen return from Indian jail, The Daily Star, March 2, 2016, http://www.
thedailystar.net/country/57-fishermen-return-indian-jail-784714
42 SAHR
the personal status of a stateless person shall be governed by the

law of the country of his domicile or, if he has no domicile, by the
law of the country of his residence
This Convention protects the social, economic and civil rights of

persons deemed to be stateless.
The political and social turmoil in the Asian region, and the
consequent shifting of political borders, has made several populations
stateless. In the present section, we look at two examples of how
different counties have approached the issue of stateless people.
While these examples are drawn from Bangladesh and India, they
reflect the problems faced by stateless persons in the region.
As a result of the border re-alignment subsequent to the 1971 war,

certain sections of people found themselves cut-off from Bangladesh,
Pakistan and India, being lodged within a small area not belonging
to either India or Bangladesh. Rendered stateless for almost four
decades, these people lived in the most difficult conditions, with
minimal access to essential goods and services, and practically no
access to education, healthcare, and other necessities.
The Human Rights Commission of Pakistan (HRCP) drew

attention to the plight of hundreds of thousands of Pakistanis
stranded in Bangladesh since 1971. Also known as Biharis, an
Urdu speaking community, they have lived, similar to refugees, in
camps and faced discrimination even though the Ministry of Home
Affairs has accepted them as citizens.53 After Bangladesh became
an independent country, many Biharis maintained that they were
53
Hassan, K. Citizenship Rights still a far cry for Bangladeshi Biharis, Dhaka Tribune,
December 9, 2016, http://www.dhakatribune.com/bangladesh/2016/12/09/
citizenship-rights-still-far-cry-bangladeshi-biharis/
Pakistani nationals and sought repatriation. But the Pakistani

government denied them citizenship and repatriation. Trapped in
Bangladesh, they lacked access to government jobs, schooling or even
access to many basic facilities. On May 18, 2008, the Supreme Court
of Bangladesh granted them citizenship and voting rights ending a
long lasting argument about the status of the stranded Pakistanis in
Bangladesh.54
A few years ago, Bangladesh granted the right to vote to the Biharis
who were minors at the time of the 1971 war or were born later,
although there was no legal recognition for people who were adults in
1971.55 In 2009 a petition was filed in the Supreme Court of Pakistan
seeking repatriation of the Pakistanis stranded in Bangladesh, and
arguing that the Pakistan government had no Constitutional or
statutory basis to withhold repatriation of its citizens. The petition
also requested the Court to direct the government to look after the
stranded Pakistanis living in camps and provide food and medicines
till the time they were repatriated to Pakistan. Although the matter
was pending at the end of 2014, it is hoped that it will come up for
hearing in the near future.
54
How a Bangladesh court ruling changed the lives of more than 300,000 stateless people,
UNHCR, 23 February, 2015, http://www.unhcr.org/news/latest/2015/2/54ec22869/
bangladesh-court-ruling-changed-lives-300000-stateless-people.html; Shahnaz
Parveen. Citizenship debate comes to an end but doubts and worries remain, The
Daily Star, May 26, 2008, http://www.thedailystar.net/news-detail-38148; Khalid
Hussain. The end of Bihari statelessness, http://www.fmreview.org/sites/fmr/files/
FMRdownloads/en/statelessness/hussain.pdf
55
Human Rights Commission of Pakistan(HRCP), 2014. State of Human Rights in
2014 P351, http://hrcp-web.org/hrcpweb/data/HRCP%20Annual%20Report%20
2014%20-%20English.pdf
44 SAHR
Meanwhile, important strides have been made between India and

Bangladesh with the signing of the Land Boundary Agreement56 on
7th June 2015. As discussed previously, the India- Bangladesh land
boundary has some disputed sites since it was determined by the
Radcliffe Award in 1947. This had led to a situation where people
living in disputed lands suffered pitiable conditions of insecurity for
decades. Previously, inhabitants of these enclaves could not enjoy full
legal rights as citizens of either India or Bangladesh. Infrastructure
facilities such as electricity, schools and health services were
deficient. Furthermore, due to the lack of access to these areas by
the administration of either country, including the law enforcement
agencies, certain enclaves became hot-beds of criminal activity.
The 2015 agreement, in an effort by both countries to avoid large
scale uprooting and displacement of populations against their wishes,
recognises that it is necessary to preserve the status quo of adverse
possessions instead of simply exchanging territories.
On the night of July 31st 2015, India and Bangladesh exchanged
enclaves in order to finally implement the 1974 Land Boundary
Agreement. India has transferred 111 enclaves with a total area of
17,160.63 acres to Bangladesh, while Bangladesh has transferred 51
enclaves with an area of 7,110.02 acres to India.
As per the agreement, persons living in these enclaves have been
recognised as citizens of the country they choose to be in, and
have been given the option to return and resettle in the country of
origin.57 This agreement has been welcomed with unprecedented
56
Excerpts from the Executive Summary to India & Bangladesh Land
Boundary Agreement. Retrieved from: http://www.mea.gov.in/Uploads/
PublicationDocs/24529_LBA_MEA_Booklet_final.pdf
57
Historic India, Bangladesh Land Boundary agreement: implementation to
begin today?. The First Post. India. July 31, 2015, http://www.firstpost.com/india/
historic-india-bangladesh-land-boundary-agreement-implementation-to-begin-
today-2372702.html .
support and relief by the populations who had been living in practical
imprisonment inside these enclaves, though some have chosen to
stay in the respective countries that they were residing in even after
the exchange. It is a promising reminder of the enormous potential
of statesmanship upon the lives of people living in the border areas.
It also underlines the fact that resolutions which take their lived
realities into account are likely to be more sustainable and long-
lasting.
Unfortunately, this agreement has been met with stiff opposition
from certain quarters, and violent resistance and attacks on the
enclaves of these individuals.58 In addition, the tribal community in
Meghalaya has threatened to approach the United Nations (UN)
challenging the agreement, as they claim that they have not been
consulted or made party to the decision.59
58
Mehbooba Jelani. Homeless No Longer. The Hindu. June 16, 2015, http://www.
thehindu.com/opinion/op-ed/homeless-no-longer/article7318972.ece .
59
PTI. Tribal landowners in Meghalaya threaten to move UN over LBA. The
Economic Times. June 26, 2015, http://economictimes.indiatimes.com/news/politics-
and-nation/tribal-landowners-in-meghalaya-threaten-to-move-un-over-lba/
articleshow/47689531.cms .
46 SAHR
iv
Refugees and the Impact of

National Boundaries
The fractured political history of these countries and the turbulent
conditions in the last century in particular, have seen a significant
movement of refugees in the region. While many refugees are
fleeing political or social oppression, others are pushed outside
their homelands because of destitute economic conditions.
In this section, the situation of refugees in different border areas
in the SAARC countries is examined, along with an examination
of the role of the state machinery, and the United Nations High
Commissioner for Refugees (UNHCR).
A recurrent theme in the context of refugees is the
disenfranchisement of entire populations on the basis of their
ethnicity, and their subsequent vulnerability to abuse at the hands
of state as well as non-state actors. Because they lack citizenship
or even domicile status in the country where they have taken
refuge, their protection under the constitutional dispensation
as well as ordinary law becomes precarious. There appears to be
regular violation of some of the basic principles of international
law relating to refugees, in particular the non-refoulement
principle.
International Instruments for Protection of Refugees

The three major international instruments for the protection of
refugees are:
1. Statute of the Office of the UNHCR, 1950
2. United Nations Convention relating to the Status of
Refugees, 1951
3. Protocol relating to the Status of Refugees,1967
The UNHCR emerged in the wake of World War II to help

Europeans displaced by that conflict. At the time it was optimistically
believed that the mandate of the UNHCR would be completed in
three years, after which it could be disbanded.1 These hopes would
prove to be unfounded - since its formation, there has never been a
situation in which the UNHCR became unnecessary. Major refugee
crises throughout the 20th century have only lead to an expansion
of its role. In recent years, the UNHCR has also been asked to help
with large numbers of Internally Displaced Persons (IDPs).
The mandate of the UNHCR is to lead and co-ordinate international

action to protect refugees and resolve refugee problems worldwide.
Its primary purpose is to safeguard the rights and well-being of
refugees. It strives to ensure that everyone can exercise the right to
seek asylum and find safe refuge in another State, with the option
to return home voluntarily, integrate locally or to resettle in a third
country.2 In this regard, the UNHCR is supposed to complement
1
UNHCR. History of UNHCR.: A GlobalHumanitarian Organization of Humble
Origins.. Retrieved from: http://www.unhcr.org/pages/49c3646cbc.html
2
UNHCR. What We Do: Help theUprooted and Stateless. Retrieved from: http://
www.unhcr.org/pages/49c3646cbf.html
48 SAHR
the role of nation states, contributing to the protection of refugees

by:
1. Promoting accession to, and implementation of, refugee
conventions and laws;
2. Ensuring that refugees are treated in accordance with
internationally recognized legal standards;
3. Ensuring that refugees are granted asylum and are not
forcibly returned to the countries from which they have
fled;
4. Promoting appropriate procedures to determine
whether or not a person is a refugee according to the
1951 Convention definition and/or to other definitions
found in regional conventions; and
5. Seeking durable solutions for refugees, which can
include voluntary repatriation, local integration, or
resettlement to a third country in situations where it is
impossible for a person to go back home or remain in
the host country.3
The 1951 Convention, which came into force on July 28, 1951,
emerges from Article 14 of the Universal Declaration of Human
Rights (UDHR), reproduced below:
(1) Everyone has the right to seek and to enjoy in other

countries asylum from persecution.
3
UNHCR. The 1951 Convention Relating To The Status of Refugees and Its 1967
Protocol. 2011. P. 6, http://www.unhcr.org/about-us/background/4ec262df9/1951-
convention-relating-status-refugees-its-1967-protocol.html
The 1951 convention forms the legal basis of the UNHCRs

mandate for the protection of refugees. It defines the term refugee4
and specifies the legal obligations of states with respect to refugees.5
It explicitly outlines the legal protections and social rights a refugee
is entitled to, as well as a refugees obligations to the host country.
It also specifies categories of people who do not qualify for refugee
status, such as war criminals.6
These Conventions articulate certain fundamental principles:7

(a) Non-discrimination: the Convention must be applied
without discrimination as to sex, age, disability, sexuality,
or other prohibited grounds of discrimination,
(b) Non-penalisation: the Convention further stipulates that,
subject to specific exceptions, refugees should not be
penalized for their illegal entry or stay. This recognizes
that the seeking of asylum can require refugees to breach
immigration rules. Prohibited penalties might include
being charged with immigration or criminal offences
relating to the seeking of asylum, or being arbitrarily
detained purely on the basis of seeking asylum, and
4
UNHCR. Introductory Note by the Office of the United Nations High
Commissioner for Refugees to the Text of Convention and Protocol on the occasion
of 60th anniversary. 2011. A refugees is defined as follows:
A refugee, according to the Convention, is someone who is unable or unwilling to return to
their country of origin owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group, or political opinion.
5
History of UNHCR. Retrieved from: http://www.unhcr.org/pages/49da0e466.html
6
Op cit 95, page 1.
7
UNHCR. Introductory Note by the Office of the United Nations High
Commissioner for Refugees to the Text of Convention and Protocol on the occasion
of 60th anniversary. 2011.
50 SAHR
(c) Non-refoulement: meaning that no one shall expel or

return (refouler) a refugee against his or her will, in any
manner whatsoever, to a territory where he or she fears
threats to life or freedom. This is the most important
principle under the Convention laid down under
Article 33.
The Convention also stipulates the basic minimum standards for

the treatment of refugees.
Other rights contained in the 1951 Convention include:
The right not to be The right to housing The right to access the
expelled, except under (Article 21); courts (Article 16);
certain, strictly defined
conditions (Article 32)
The right not to be The right to public The right to freedom

punished for illegal relief and assistance of movement within
entry into the territory (Article 23); the territory (Article
of a contacting State 26); and
(Article 31);
The right to work The right to freedom The right to be issued

(Articles 17 to 19); of religion identity and travel
(Article 4); documents (Articles
27 and 28).
In 1967 the Protocol relating to the Status of Refugees was

introduced to expand the scope of the 1951 Convention, which was
originally limited to European refugees displaced by World War
II. The 1967 Protocol removed these limitations, thus giving the
Convention universal coverage.8 At present there are 148 countries

across the world that have acceded to one or the other of the two
instruments.9
Also relevant are the 1954 Convention Relating to the Status of

Stateless Persons, and the 1961 Convention on the Reduction
of Statelessness. There are also regional instruments relating to
refugees that have been put in place subsequently, such as the 1969
Organisation of African Unity (OAU) Refugee Convention in
Africa, the 1984 Cartagena Declaration in Latin America, and the
development of a common asylum system in the European Union.
International instruments which indirectly enforce accountability on
nation states to protect refugees and their rights include the UDHR,
the International Covenant on Civil and Political Rights (ICCPR),
the International Covenant on Economic, Social and Cultural Rights
(ICESCR), the United Nations Convention on the Rights of the
Child (UNCRC), the Convention on the Elimination of all Forms
of Discrimination Against Women (CEDAW), the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT), the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD), and
the International Convention on the Suppression and Punishment
of the Crime of Apartheid (ICSPA).10
8
UNHCR. Note by the Office of the United Nations High Commissioner for
Refugees to the Text of Convention and Protocol on the occasion of 60th anniversary.
p.2. Retrieved from: http://www.unhcr.org/3b66c2aa10.html
9
UNHCR. State Parties to the 1950 Convention and 1967 Protocol. Retrieved from:
http://www.unhcr.org/3b73b0d63.html
10
For details on these instruments, see Zutshi, Ragini Trakroo.Refugees and the
Law. HRLN. Chapter 3 under Part II, pp. 41 55.
52 SAHR
Changing Definition of Refugees in International and

Regional Instruments
The definition of the term refugee has changed over time in
international and regional instruments.11
In 1922, the Nansen Passport, an identity certificate issued to stateless
persons by the League of Nations, defined refugees as persons of
international concern who were outside the country of their origin
without protection of the government of that state. The difference
between voluntary and involuntary asylum seekers emerged in 1938
owing to the large number of persons fleeing Germany. In 1950 the
Statute of the UNHCR was extended to anyone who is outside the
country of his nationality, or is unable or, because of such fear, is unwilling
to avail himself of the protection of the government of the country of his
nationality, or, if he has no nationality, to return to the country of his
former habitual residence. Following the adoption of the Convention
in 1951, the principle of non-refoulement, which prohibits the return
of a refugee to a territory where their life or freedom is threatened,
was established. The 1967 Protocol gave universal coverage to the
1951 Convention. Again in 1984, the Cartagena Declaration on
Refugees further expanded the definition.
However, the definition of refugees as it presently stands in
international law has been criticized for differentiating between
political refugees, who are pushed out of the borders, and economic
refugees, who are attracted by the pull of better economic
opportunities. This distinction between migrants, who are perceived
as voluntary, and refugees who are categorized as involuntary, is
not necessarily accurate. The international law regime also fails to
take into account IDPs or those displaced due to reasons of natural
11
Goodwin-Gill, Guy S and McAdam, Jane. The refugee in international law. OUP.
2007.
calamities or other reasons,12 although in some areas the UNHCR

has been asked to assist with rehabilitation of IDPs.
Compliance in the South Asian Region with

International Law on Refugees
Most countries in South Asia have not acceded to any of the
international instruments relating to refugees. Afghanistan is the
exception, having acceded to the 1951 Convention and the 1967
Protocol only in 2005. Despite the high numbers of refugees in the
region, the response of local nation-states has been ad hoc and uneven
at best. This has even extended to their willingness to allow the
UNHCR to establish its presence and assist these massive distressed
populations.13 The absence of any binding regional instrument on
refugee rights in South Asia, unlike Africa or Latin America, has
exacerbated these problems.
Instead, it has been the domestic laws relating to aliens and foreigners
which have been applied to refugees, leaving them intensely
vulnerable to prosecutions, displacement and day-to-day harassment
because of their ambiguous and unprotected status.
12
Bose, Tapan. The Changing Nature of Refugee Crisis in States, Citizens and
Outsiders: The Uprooted Peoples of South Asia. South Asian Forum for Human Rights.
Kathmandu. 1997.
13
Abrar, C.R. Legal protection of refugees in South Asia. Forced Migration
Review. Review No 10. April 2001, http://www.fmreview.org/sites/fmr/files/
FMRdownloads/en/FMRpdfs/FMR10/fmr10.8.pdf
54 SAHR
The Table below summarizes this legal position.
Table II: Status of Saarc Countries Compliance with

International Instruments on Refugees
Country Domestic legislations

1951 Convention
1954 Convention
1961 Convention
Constitutional
1967 Protocol
provisions*
Afghanistan a a Chapter NA
1
Bangladesh Article Foreigners Act of 1946:
25 Registration of Foreigners
Act 1939; Passport Act 1920
Bangladesh Citizenship
(Temporary Provision) order
1972: Extradition Act 1974:
Naturalization Act 1926
Bhutan Article NA
9, (24);
Article
10(25)
India Article Foreigners Act 1946;
51(c) Registration of Foreigners
Act 1939; Passports Act,
1967; Passports (Entry into
India) Act 1920; Extradition
Act 1962
Illegal Migrants Act, 1983;
Foreigners Order, 1948.
Maldives Article NA
68
Country Domestic legislations
1951 Convention
1954 Convention
1961 Convention
Constitutional
1967 Protocol
provisions*
Nepal Article Aliens Act ; Citizenship Act
55(b) 2063, 2006; Immigration Act
(3); 2049, 1992; Extradition Act
Article 2045, 1988.
248(2)
(g)
Pakistan Foreigners (Amendment)
Ordinance, 2000; Foreigners
Order of Pakistan, 1951;
Pakistans Citizenship Act,
1951; The Foreigners Act
of Pakistan, 1946; The
Registration of Claims
Act, 1956; The Displaced
Persons (Compensation and
Rehabilitation) Act, 1958
Sri Lanka Article NA

27(15)
Article
157
a= Acceded; X= Not a party; NA= legislations relating to this country were not
readily available to this study.
* The constitutional provisions listed in this column are general provisions
relating to compliance with international treaties under domestic law, and do
not specifically relate to refugees.
Compiled for the present study. Status available at: http://tbinternet.ohchr.

org/_layouts/TreatyBodyExternal/Countries.aspx
56 SAHR
It is important to note that the principle of non-refoulement

is considered a rule of customary international law. As such,
therefore, it is binding on all States whether or not they have
acceded to the 1951 Convention, the 1967 Protocol, or any other
international instrument. Over the years, certain principles have also
developed through actual implementation of domestic laws within
constitutional boundaries, and through court decisions and judicial
precedents. Therefore it is useful to examine how different countries
in the SAARC region have approached specific situations relating to
refugees in their jurisdiction.
Role and Status of UNHCR in South Asia
As will be demonstrated below, over the last few decades the

UNHCR has been able to make substantial inroads in the South
Asian region, despite the fact that none of the countries in the
region are a party to the main international instruments related to
refugees, with Afghanistan being the only exception. It is clear that
the presence of UNHCR in different host countries has improved
the conditions of refugees to some extent. The UNHCR has set up
camps in different countries and undertaken relief efforts. It has
also attempted to explore other durable solutions for refugees, for
instance, the resettlement in different countries of ethnic Nepalese
refugees from Bhutan.
Interestingly, the most serious challenges to UNHCR operations

in the region are the governments faced with refugee crises. In a
number of instances, the UNHCR was not allowed access to
refugees at all, such as in India, or was prevented from conducting its
registration process, such as in Pakistan. Despite India and Pakistan
being members of the UNHCR Executive Committee, the UN
agency has not been allowed to function freely in these countries.
The Government of Bhutan did not allow the process of repatriation
to happen, forcing the adoption of third country resettlement as the
only durable solution. In some cases the UNHCR operations have
been made defunct by the local governments themselves, such as in
the case of Sri Lankan open relief camps.
As can be clearly seen, the UNHCR has found its hands tied on a
number of occasions in the SAARC region. An important factor
governing the effectiveness of UNHCR operations is the current
political relationship between the two relevant countries. Other
considerations relate to foreign policy considerations (Indias
intervention in Sri Lanka), the force of nationalistic policies (Bhutan)
or political incidents (attack on school in Peshawar).
At the same time, the tedious procedures adopted by the UNHCR

for Refugee Status Determination (RSD) have also led to the
exclusion of a number of refugees from the registration process.
This has resulted in a lot of misery for those who did not possess
necessary documents or evidence. On occasion, the UNHCR has
been accused of colluding with the local governments in forcible
repatriation of refugees to their country of origin, such as in the
case of Sri Lankan Tamil refugees in India, and Afghan refugees
in Pakistan. It has also been observed that the UNHCR has not
pursued local governments adequately in order to gain access to
refugees and camps, such as in India. It has also engaged in tripartite
agreements with nations thereby indirectly preventing them from
acceding to the international instruments relating to refugees.
While the UNHCR has been working hard to provide relief for
refugees in South Asia, it has also made some mistakes in the process.
The specific role it has played in different countries in the region is
examined in greater detail below.
58 SAHR
Status of Refugees in India
India is home to refugees from several countries like Afghanistan,

Bangladesh, Pakistan, Sri Lanka, Myanmar, Bhutan and Tibet. The
legal framework within which this diverse group of refugees has to
negotiate their rights in India will be examined here.
As stated earlier, India is not a signatory to the 1951 Convention

or the 1967 Protocol. Also, there is no domestic law or policy or
procedure to govern the protection and treatment of refugees,
although it is reported that the Ministry of Home Affairs has
initiated the process of drafting a national refugee law.
Instead, refugees are viewed as foreigners under a variety of ordinary

domestic laws,14 making them subject to domestic laws relating
to passports and entry, stay, and exit from Indian territory. Using
the wide discretionary powers available under Section 3 of the
Foreigners Act of 1946, the Ministry of Home Affairs can issue
Residential Permits to any foreigner. Large numbers of UNHCR-
recognized refugees have been able to secure their stay in India on
the basis of the informal recognition of the UNHCR-issued refugee
certificates.15
The question of which refugees are granted such protection, and

which are not, depends upon a variety of extraneous considerations,
not the least of these being the political relationship between India
and the country of origin. There is no standardization of treatment
14
This includes the Foreigners Act, 1946; the Registration of Foreigners Act, 1939; the
Passports Act, 1967; the Passports (Entry into India) Act, 1920; the Extradition Act,
1962; Illegal Migrants Act, 1983; the Foreigners Order, 1948; etc.
15
Sen, Sarbani. Paradoxes of the International Regime of Care Refugees and the
State. Practices of Asylum and Care in India. 1947-2000. Ed. Ranabir Samaddar. Sage
Publications. 2003.
of refugees, and therefore the policy and approach of India to

refugees remains ad hoc and variable. This inconsistency has serious
consequences.
This approach is also evident in the status and recognition of the

UNHCR in India. The relationship between the Indian government
and the UNHCR has not always been smooth, and although the
UNHCR has been operating in India for a long time, the Indian
government has in recent decades worked to significantly diminish
the agencys role. It was only in 1969, after considerable resistance,
that the Indian Government allowed the establishment of the
UNHCR office. The immediate reason was the tremendous influx
of Tibetan refugees after the Indo-China War of 1962. However,
the agency was forced to leave in 1975 due to its failure to help deal
with the massive influx of refugees from East Pakistan,16 estimated
at 10 million people.17 The office of the UNHCR was re-established
in 1981, after a large number of Afghan refugees began to arrive in
India, leading the Indian government to invite the UNHCR to take
over the responsibility of handling these refugees. Since that time,
the agency has been responsible for the recognition and protection of
urban refugees within the capital. Even today, UNHCR is permitted
to operate within a limited jurisdiction out of its office in New Delhi,
16
Sarbani, Sen. (in Practices of Asylum and Care in India, Ranabir Samaddar 2003)
explains that it is after a lot of resistance by the Indian Government, that the
UNHCR office was established in India in 1969 in the light of the Indo-Chinese
War of 1962 and the need for assistance to Tibetan refugees. But by June 1975
assistance to Tibetans and Nepalese was discontinued due to China becoming part
of the UN in 1973 and its criticism of UNHCR assistance to Tibetan refugees.
17
On this point, see K.C. Saha. The Genocide of 1971 and the Refugee Influx in the
East Refugees and the State: Practices of Asylum and Care in India, 1947-2000. Ed. R.
Samaddar. Sage Publications,2003. pp. 240-41
60 SAHR
and a small office in Madras. The UNHCR also faces hurdles in its
work because of lack of formal accreditation.18
The agency has been refused access to refugees in camps, where they
would normally provide or support international assistance. This
includes the denial of access to the camps established in Manipur
and Mizoram in 1988 for Burmese refugees. In 1994, UNHCR
was also refused access to refugees being involuntarily repatriated
to Bangladesh from the northeastern state of Tripura. UNHCR is
responsible for determining refugee status only for asylum seekers
who find their way to New Delhi, and that on a case-by-case basis.
Those near the borders remain at the mercy of the BSF, the SSB, or
any other military/ security force which is deployed in the area.19
The UNHCR must take its share of the responsibility for this situation,
having never adequately appealed to the Indian government, the
UN or the international community for much-needed support a
critical breach of its mission to provide protection and seek long-
term solutions for these refugees. However, the relations between the
UNHCR and India have improved since 1995 when India became a
member of the Executive Committee of the UNHCR.
In the absence of any domestic legislation or administrative

framework for the recognition and protection of refugees generally,
the RSD processes remain ad-hoc. Therefore, different legal and
administrative procedures apply to different group of refugees in the
18
Chimni, B.S. Status of Refugees in India: Strategic Ambiguity in Refugees and
the State. Practices of Asylum and Care in India, 1947-2000. Ed. R. Samaddar. Sage
Publications. 2003.
19
Nair, Ravi. Refugees and agency. Himal Southasian. December 2006, http://old.
himalmag.com/component/content/article/1488-Refugees-and-agency.html .
country.20 One writer21 has categorized refugees in India based on

the assistance they have received from the Indian Government and
the State, as under:
Category I Refugees who receive full protection from the Indian

government as per standards set by the government of
India, such as Tamil refugees from Sri Lanka.
Category II Refugees who are granted refugee status by the
UNHCR and are protected under the principle of non-
refoulement, such as Burmese and Afghan refugees.
These are called mandate refugees.
Category III Refugees who are neither recognised by the Indian
government nor the UNHCR, but have entered India
and assimilated into the local community, such as Chin
refugees from Burma living in the state of Mizoram.
It is important to state that the UNHCR is not constrained by

any legal classification of refugees in its distribution of aid, yet it
does relatively little work in India, focusing mainly on mandate
refugees. This is partly because of the constraints of working with the
Indian Government. The UNHCR requires a request from the host
government before it can provide material assistance to refugees.22
In the result, refugees are often denied any officially recognised
20
Sen, Sarbani. Paradoxes of the International Regime of Care: The Role of the
UNHCR in India. Refugees and the State: Practices of Asylum and Care in India, 1947-
2000. Ed. R. Samaddar. Sage Publications. 2003.
21
Nair, Ravi. Refugee Protection in South Asia States, Citizens and Outsiders: The
Uprooted Peoples of South Asia. Ed. Manchanda, Rita and Bose, Tapan. South Asian
Forum for Human Rights. Kathmandu. 1997.
22
Nair, Ravi. Abandoned and Betrayed: Afghan Refugees under UNHCR Protection
in New Delhi. South Asia Refugee Watch, 1999, http://www.calternatives.org/
resource/pdf/Abandoned%20and%20Betrayed%20-%20Afghan%20Refugees%20
under%20UNHCR%20Protection%20in%20New%20Delhi.pdf .
62 SAHR
status, are subject to police harassment, and vulnerable sections like

women and children remain inadequately protected. Restrictions on
employment further hinder their ability to become self-reliant.
Judicial interventions
Despite its failure to accede to international conventions on the

subject, and its limited support to the UNHCR, India cannot escape
its obligations to comply with the principle of non-refoulement
under international customary law. In addition, India is accountable
to its own Constitution and various international treaties that
indirectly protect the right of refugees.23
It is also settled law, as laid down by the Supreme Court of India, that
provisions of international conventions, even if not ratified by India,
can be read into domestic laws unless they are patently inconsistent,
and the Courts have drawn from international instruments to flesh
out a number of fundamental and constitutional rights.24 The rights
of refugees in varying situations have come up for consideration in
Indian constitutional courts in a number of cases.25
23
Article 51 of the Constitution of India, found in Part IVA - Fundamental Duties
states: 51. Promotion of international peace and security The State shall endeavour to
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised
peoples with one another; and encourage settlement of international disputes by arbitration.
24
See, for this purpose, Maganbhai Ishwarlal Patel v. Union of India (1970) 3 SCC
400; Gramophone Company Of India Ltd vs. Birendra Bahadur Pandey & Ors (1984) 2
SCC 534; Vishaka & Others v. State of Rajasthan & Ors. (1997) 6 SCC 241.
25
For a detailed examination of judgments and court decisions, see B.S. Chimni,
Status of Refugees in India in Refugees and the State: Practices of Asylum and Care in
India, 1947-2000 Ed. Ranabir Samaddar. Sage Publications. 2003.
A Constitution Bench of the Supreme Court in Hans Muller of

Nurenburg v. Superintendent Presidency Jail & Ors.26 has upheld
the constitutional validity of Section 3(2)(c) of the Foreigners Act,
1946, which authorizes the Central Government to make provision,
either generally or with respect to all foreigners, for prohibiting or
regulating or restricting their entry into India or their departure
therefrom or their presence or continued presence therein.
In Louis De Raedt v. Union of India27 the Supreme Court of India

held that the principle of audi alteram partem applies to all persons,
and therefore a refugee would have a right to be heard before he is
deported, although it also observed that there is no hard and fast rule
regarding the manner in which this right to be heard is provided.
However, the Court also held that that Article 21 of the Constitution
of India guarantees the protection of personal liberty to citizens and
foreigners alike, and that no person can be deprived of his personal
liberty except according to the procedure established by law. The
Court further relied upon the decision in Maneka Gandhi vs. Union
of India28 which established the principle that such procedure must
be reasonable and free of arbitrariness. Therefore the principle of
natural justice has to be read into Section 3(2) (c) of the Foreigners
Act, 1946, the arbitrary exercise of power is not permissible, and
a reasonable opportunity of being heard must be provided. The
extent of opportunity to be heard has to depend on the facts and
circumstances of each case.
26
(1955) 1 SCR 1284
27
(1991) 3 SCC 554
28
(1978) 2 SCC 248
64 SAHR
This principle has been followed in numerous subsequent decisions.

In Mohammad Sediq vs. Union of India,29 the Delhi High Court
rejected the argument of the government of India that the petitioner,
as a foreigner, has no right to stay in India. The Indian government
had sought to deport the petitioner to Afghanistan, his country of
origin, even though he held a valid refugee certificate issued by the
UNHCR and renewed it from time to time. The government argued
that he was undesirable and dangerous to the security of India. The
Court held:
In so far as rights of persons other than citizens are concerned,

there is no manner of doubt that we are a country governed
by the rule of law. Our constitution confers certain rights on
every human being and certain other rights on the citizens
alone. Every person whether he is a citizen or not, is entitled
to equality before the law and equal protection of the laws. As
such, no person can be deprived of his life or personal liberty
except according to the procedure established by law.30
Despite this acknowledgement of the petitioners constitutional

rights, the order of the government was upheld by the Court after
it examined the material available, and satisfied itself that a proper
opportunity to be heard had been provided to the petitioner. Since
the right to be heard had been provided, concerns about national
security could now justify deportation within the bounds of
constitutional law.
In the context of Sri Lankan refugees in Tamil Nadu, in P.

Nedumaran and Dr. S. Ramadoss v. Union of India and the State
29
(1998) 47 DRJ 74
30
Ibid at page 77
of Tamil Nadu,31 the Madras High Court was of the view that
certain standards have to be met before refugees can be repatriated
to the country of their origin. Above all, repatriation could only
be undertaken if it could be proved to be voluntary. Consequently,
it would not be wrong to conclude that the Madras High Court
accepted the principle of voluntary repatriation as the basic standard
that had to be met with respect to refugees, despite the overall right
of the State to deport.
The issue of protection of refugees or foreigners under the fundamental

rights chapter of the Constitution of India came up in the case
relating to Chakma refugees in the Supreme Court. In National
Human Rights Commission vs. State of Arunachal Pradesh &
Anr.32 the Supreme Court examined the long line of preceding
decisions where it has been held that foreigners are entitled to the
protection of Article 21 of the Constitution. The Court observed:
We are a country governed by the Rule of Law. Our Constitution

confers certain rights on every human being and certain other
rights on citizens. Every person is entitled to equality before
the law and equal protection of the laws. So also, no person can
be deprived of his life or personal liberty except according to
procedure established by law. Thus the State is bound to protect
the life and liberty of every human-being, be he a citizen or
otherwise, and it cannot permit anybody or group of persons,
e.g., the All Arunachal Pradesh Students Union(AAPSU), to
threaten the Chakmas to leave the State, failing which they
would be forced to do so. No State Government worth the name
can tolerate such threats by one group of persons to another group
31
Civil Writ no. 12342 of 1992, Madras High Court, judgment delivered on 27 August
1992, unreported.
32
(1996) 1 SCC 742.
66 SAHR
of persons; it is duty bound to protect the threatened group from

such assaults and if it fails to do so, it will fail to perform its
Constitutional as well as statutory obligations. Those giving
such threats would be liable to be dealt with in accordance with
law. The State Government must act impartially and carry out
its legal obligations to safeguard the life, health and well-being
of Chakmas residing in the State without being inhibited by
local politics. Besides, by refusing to forward their applications,
the Chakmas are denied rights, Constitutional and statutory,
to be considered for being registered as citizens of India.33
In the context of migrants from Bangladesh, a three-judge Bench

of the Supreme Court in Sarbananda Sonowal vs. Union Of India
& Anr34 struck down the Illegal Migrants (Determination by
Tribunals) Act, 1983 (IMDT Act). A special piece of legislation,
the IMDT Act, described itself as a statute to purportedly deal
with the detection of foreigners who migrated into India across the
borders of the eastern and north-eastern regions of the country on
and after the 25th day of March, 1971 and illegally remained in
India, which was declared to be detrimental to the interests of the
public of India. In stating that this is being done by taking advantage
of the circumstances of such migration and their ethnic similarities
and other connections with the people of India, the statute plainly
points to the migration of Bangladeshis into India after the 1971
war.35 However, according to the petitioner the provisions of the
IMDT Act provided many safeguards to an alleged illegal migrant
33
Ibid at paragraph 20.
34
(2007) 1 SCC 174.
35
The preamble of the IMDT Act went on to state that:
AND WHEREAS on account of the number of such foreigners and the manner in which
such foreigners have clandestinely been trying to pass off as citizens of India and all other
relevant circumstances, it is necessary for the protection of the citizens of India to make
whose presence in India had given rise to serious national security

problems. The petitioner further argued that such persons are trying
to pass off as citizens of India in a clandestine manner. He argued
that the IMDT Act, which is enforceable only in the State of Assam,
contains numerous provisions which make it virtually impossible to
detect and deport a foreigner.
Accepting the arguments of the petitioner, the Supreme Court held

that the IMDT Act failed to serve the purpose for which it was
enacted, observing that:
A deep analysis of the IMDT Act and the Rules made thereunder
would reveal that they have been purposely so enacted or made
so as to give shelter or protection to undocumented migrants
who came to Assam from Bangladesh on or after 25-3-1971
rather than to identify and deport them.36
The Supreme Court further observed:
It is the foremost duty of the Central Government to protect

its borders and prevent trespass by foreign nationals. Article
51-A(d) of the Constitution says that it shall be the duty
of every citizen of India to defend the country and render
national service when called upon to do so. If an Act made
by legislature has the disastrous effect of giving shelter and
protection to foreign nationals who have illegally transgressed
the international border and are residing in India and further
the Act is unconstitutional, any citizen is entitled to bring it to
special provisions for the detection of such foreigners in Assam and also in any other part of
India in which such foreigners may be found to have remained illegally.
36
Sarbananda Sonowal vs. Union of India & Anr. (2007) 1 SCC 174 at para 28.
68 SAHR
the notice of the Court by filing a writ petition under Article 32

of the Constitution.37
The Court accordingly struck down the IMDT Act as ultra vires the
Constitution, and also divested the Tribunals established under the
Act of any further role in pending cases, directing that all these and
further cases will be governed by the 1946 Foreigners Act.38
Thus, we find that while the courts of law in India have been careful
in observing that foreigners on Indian soil must be granted a hearing
before they are deported, and that such processes cannot be arbitrary
and capricious, they have also recognised the sovereign power of
the state to deport persons which it decides are inimical to national
interest. That considerations of national security and integrity of
borders weigh heavily on the mind of the judicial officers is clear
from the observations in the Sonowal case, where eventually the
Court rejected a statute which provided greater processual rights to
aliens in favour of one where their rights to even due process are
severely restricted. It is also a matter of concern that the international
common law principle of non-refoulement, which is undoubtedly
binding upon the Indian government in such situations, has not
been adverted to by the Courts. This invisibilisation of international
law obligations with respect to foreigners or refugees plays out in
different ways with different categories of refugees.
37
Ibid para 56.
38
For an analysis of the judgment and its implications, see
Abir, Phukan. Price of Inaction. Frontline. Vol 29. Issue 16. 11-24 Aug. 2012,
http://www.frontline.in/static/html/fl2916/stories/ 20120824291601700.htm
Afghan Refugees in India
With the continuing turmoil in Afghanistan, it is not surprising

that a large number of Afghan refugees have fled to both Pakistan
and India, from as far back as the end of the pro-Soviet regime and
the execution of Najibullah in 1992. In India, a number of these
refugees are from the Sikh community, and a few of them are from
the Hindu Community. The Sikh community which was seen as
one of rich bankers, were particularly targeted over time, as money
lending with interest was prohibited under Islamic Law.39 Over
the years, the status of Sikhs in Afghanistan became increasingly
precarious, with the Islamic fundamentalist Taliban initiating a
number of discriminatory practices, such as ordering Sikhs to wear
yellow patches.40
Although India does not allow the UNHCR to work in border

areas, it has allowed the UNHCR to carry out the RSD procedure
with registration as asylum seekers. Accordingly, Afghans who are
recognized as refugees according to the UNHCR mandate are
provided with a residence permit in India.
Unfortunately, these permits are given on a case-by-case basis

through individual investigations. As a result there are a large
number of people from Afghanistan who do not possess residence
permits, either because these are rejected or their applications are
still pending. This entails a daily struggle to protect themselves and
their families, with many being forced to work in the informal sector
where they are further exploited, particularly the women. Yet, Afghan
39
Human Rights Feature. Harassment of Sikhs in Afghanistan. New Delhi. Feb
2012. Index: HRF/219/12.
40
Reminiscent of the Star of David patch that the Jews were forced to wear in Nazi
Germany.
70 SAHR
refugees are better placed in India than the refugee populations from
other countries such as Myanmar or Somalia.41
Refugees from the Chittagong Hill Tracts in Arunachal Pradesh
The Chittagong Hill Tracts (CHT) is a hilly region located in

the south-east part of Bangladesh. It borders the Indian States of
Tripura on the North and Mizoram on the East. Among the various
indigenous groups that reside in the CHT, the Chakmas and the
Marmas are numerically the largest groups. The people in CHT
differ from the majority Bengali population in the plains by way of
race, religion and language.
The people of CHT have been uprooted twice42 since the partition
of India and Pakistan in 1947. Although the CHT was attached to
East Pakistan at the time of partition, the Chakma leaders hoisted
the Indian tricolor at Rangamati because they had expected that the
predominantly Buddhist region would become a part of India. But
a special announcement was made four days after independence of
India and Pakistan that the Boundary Commission headed by Sir
Radcliffe had attached the region to East Pakistan. The Constitution
of Pakistan in 1956 recognised the CHT as an Excluded Area, but
later in 1964 the National Assembly removed CHT from the list of
Tribal Areas.
41
JIPS. Urban Profiling of Refugee Situations in Delhi. October 2013, http://www.
jips.org/system/cms/attachments/817/original_Urban_Profiling_of_Refugee_
Situations_in_Delhi.pdf
42
For a detailed examination of the CHT refugees, see
Chaudhry, Sabyasachi Basu Ray. Uprooted Twice Refugees and the State: Practices
of Asylum and Care in India, 1947-2000. Ed. Ranabir, Samaddar. Sage Publications.
2003.
The first displacement of the people of CHT resulted from the

construction of the Kaptai Hydroelectric Power dam over the
Karnaphuli River in 1964. Thousands of people, mainly Chakmas,
were displaced internally and about 40,000 crossed over into the
Indian states of Tripura, Assam and Mizoram when the Government
failed to provide them with compensation and/or rehabilitation.
These refugees were accommodated in a desolate land of the North
Eastern Frontier Agency (NEFA), now known as Arunachal
Pradesh. The reasons for such permission to remain being granted
by the Indian state, however, remain ambiguous.
The Chakmas were forced to flee a second time in 1978 when the
Government of Bangladesh started a land policy of settling people
from the plains in the fertile part of the hills. In the face of growing
militarization and Islamisation of the Bangladesh State, many were
forced to cross over into the Indian states of Mizoram and Tripura
once again. The ethnic tensions on the Bangladesh side of the border
forced hundreds of thousands of people to move over the years to
Tripura, where they resided in Government run camps.
Unfortunately, these refugees have become victims of xenophobia in
India as well, facing persecution from various quarters. The Arunachal
Pradesh state government has actively and passively persecuted
them through laws preventing outsiders from owning property, and
restrictive policies such as the Inner Line Permit System.43 In 1994,
a full-fledged agitation led by the All Arunachal Pradesh Students
Union (AAPSU) was started to oust the refugees from the state,
setting deadlines for the government to expel the Chakmas. The state
government supported these demands at different points in time
by banning employment of Chakmas and Hajongs, denying trade
43
The Inner Line Permit system restricts the entry of outsiders into certain sensitive
border regions of India, except through the written permission of the State
government.
72 SAHR
licenses, ration cards, citizenship applications, electoral roll inclusion

applications, admission in schools etc. Schools built by Chakmas
were either burned down or destroyed by the state government.44
In a public interest litigation before the Supreme Court of India,
these atrocities were brought to light and were deprecated in no
uncertain terms. The Supreme Court passed a detailed judgment45
containing directions in the nature of mandamus to the central and
state governments:
1) the first respondent, the State of Arunachal Pradesh, shall
ensure that the life and personal liberty of each and every
Chakma residing within the State shall be protected
and any attempt to forcibly evict or drive them out of
the State by organised groups, such as the AAPSU, shall
be repelled, if necessary by requisitioning the service of
para-military or police force, and if additional forces
are considered necessary to carry out this direction, the
first respondent will request the second respondent, the
Union of India, to provide such additional force, and the
second respondent shall provide such additional force
as is necessary to protect the lives and liberty of the
Chakmas;
2) except in accordance with law, the Chakmas shall not
be evicted from their homes and shall not be denied
domestic life and comfort therein;
3) the quit notices and ultimatums issued by the AAPSU
and any other group which tantamount to threats to the
44
Mahanirban Calcutta Research Group. Executive Summary of the Report of The
State of being Stateless: A Case Study of Chakmas of Arunachal Pradesh. Retrieved
from: www.mcrga.ac.in/Statelessness.pdf
45
National Human Rights Commission vs. State of Arunachal Pradesh & Ors. (1996)
1 SCC 742
life and liberty of each and every Chakma should be

dealt with by the first respondent in accordance with
law;
4) the application made for registration as citizen of India
by the Chakma or Chakmas under Section 5 of the
Act, shall be entered in the register maintained for the
purpose and shall be forwarded by the Collector or the
DC who receives them under the relevant rule, with
or without enquiry, as the case may be, to the Central
Government for its consideration in accordance with
law; even returned applications shall be called back
or fresh ones shall be processed and forwarded to the
Central Government for consideration;
5) while the application of any individual Chakma is
pending consideration, the first respondent shall not evict
or remove the concerned person from his occupation on
the ground that he is not a citizen of India until the
competent authority has taken a decision in that behalf;
and (6) the first respondent will pay to the petitioner
cost of this petition which we quantify at Rs. 10,000/-
within six weeks from today by depositing the same in
the office of the NHRC, New Delhi.46
Despite this judgment, the Chakmas and Hajongs remained victims

of harassment and torture. The persecution of 65,000 refugees and
their statelessness continued.
In 1997, after the Awami League Government came to power, a

delegation from Dhaka visited the refugee camps in India. They
46
Ibid, paragraph 21.
74 SAHR
persuaded the refugees to resettle in the CHT,47 in return for

amnesty from criminal charges, safety assurances, job guarantees,
and financial help to build houses and resettle land. About 6,708
refugees walked back to the CHT, but the Bangladeshi government
was able to rehabilitate less than half of the returnees.
The matter came to a partial closure after a peace accord was

signed between the Government of Bangladesh and the Parbatya
Chattagram Jana Sanghati Samti (PCJSS)48 on 2 December 1997,
after which the PCJSS surrendered their arms. Following this
agreement almost the entire population of refugees (about 60,000 at
the time) returned to Bangladesh.
Difficulties resulting from the slow implementation of the accord

by the Government persist. Criminal charges were not dropped
against many returnees, contrary to the assurance given. The military
presence in the CHT was not reduced by the Government. The
plains people, who were settled in the CHT by the Government
in 1978, are refusing to give back the lands they had got in this
once exclusive and autonomously managed region. Security forces
continue to harass the refugees who are now ethnic minorities in
their own land, and have to struggle to get back the lands wrested
from them since 1964.
47
The terms were incorporated in an agreement dated 9 March 1997 between leaders
of the refugees and the team from Dhaka.
48
The PCJSS, or the United Peoples Party of the Chittagong Hill Tracts, is a political
party which fought for self rule in CHT region, and which also had a military wing
called Shanti Bahini to fight the government forces and Bengali settlers in the CHT.
Sri Lankan Tamil refugees in India

As a result of the civil war in Sri Lanka which lasted about three
decades, there has been an ebb and flow of Sri Lankan Tamils from
the country, particularly to India.49 Even today, a sizeable population
of refugees continues to reside in India. Although these populations
are not necessarily located in the border areas between the two
countries, it makes for an important case study. There have been
bilateral agreements between the two countries as many of these
refugees reside in camps in India. These camps are not monitored or
supervised by the UNHCR, and there are a number of human rights
violations which recur.
Broadly, the Sri Lankan refugees in India can be classified into three
groups:50
(a) camp refugees, or those who are living in 111 camps

spread over 23 districts in Tamil Nadu.
(b) non-camp refugees, or those who have been living in

cities and small towns, either in rented houses or with
friends and relatives. According to some reports, there
are nearly 40,000 such non-camp refugees living in
Tamil Nadu at present.
49
V. Suryanarayan. Sheltering Civilians and Warriors in Refugees and the State:
Practices of Asylum and Care in India 1947-2000 Ed, Ranabir, Samaddar. Sage
Publications. 2003. Also, The Encyclopedia of the Sri Lankan Diaspora page 75.
Accessed on 18 March 2015 at: https://books.google.co.in/books?id=4N5UAgAA
QBAJ&pg=PA74&lpg=PA74&dq=fourth+eelam+war+exodus+refugees+number&s
ource=bl&ots=9YmzvYT2D2&sig=32I9lLhT3eGGDwCL4tOlwp8k6-Y&hl=en&-
sa=X&ei=KjUJVc2FCIOYuQSk2ILYDA&ved=0CCEQ6AEwAA#v=onepage&q
=fourth%20eelam%20war%20exodus%20refugees%20number&f=false
50
Dasgupta, Abhijit. Repatriation of Sri Lankan Refugees: Unfinished Tasks.
Economic and Political Weekly. June 14, 2003. pp. 2365-2367
76 SAHR
(c) a third smaller group consists of those who are now

living in special camps under the strict surveillance of
the local police belonging to the Q branch. They have
been sent to special camps because of their alleged
links with the LTTE, and are located in Kanchipuram,
Vellore and Madurai.51
The role of the UNHCR in the case of Tamil refugees from Sri Lanka
in India appears to be ambivalent. This is due to a combination of
reasons, some of which are outside the control of the UNHCR.
When the influx of refugees began, the Indian Government was

reluctant to allow UNHCR to intervene. In July 1992, UNHCR and
the Government of India reached an agreement that allowed the
former a token presence in Madras. Several months elapsed before
UNHCR was allowed to open its office in Madras (now Chennai),
and the agency was allowed access to the refugees at their point of
departure, that is, at the time of repatriation. UNHCR officials were
only permitted to interview those refugees who had already signed
an agreement to go back to Sri Lanka, thus curtailing its ability to
prevent forcible repatriations. Also, UNHCR was unable to visit the
camps, nor were the refugees able to visit its office in the city, thus
preventing it from sharing critical information regarding conditions
in Sri Lanka.52
51
A detailed list of camps with respective number of refugees in Tamil Nadu in 2002
and a map of Tamil Nadu showing the location of camps can be referred to in V.
Suryanarayan. Sheltering Civilians and Warriors in Refugees and the State: Practices
of Asylum and Care in India 1947-2000 Ed, Ranabir, Samaddar. Sage Publications.
2003.
52
Nair, Ravi. Abandoned and Betrayed: Afghan Refugees under UNHCR Protection
in New Delhi. South Asia Refugee Watch. 1999.
According to official statistics shared by the State government,

in January 2015 there were a total of 102,055 Sri Lankan Tamil
refugees in Tamil Nadu, of whom 64,924 were living in 107 refugee
camps.53 The conditions in these refugee camps have come under
severe criticism, particularly by human rights and civil society groups,
which have raised concerns regarding a number of violations taking
place in these camps.
1. Inhuman living conditions

The Peoples Union for Civil Liberties (PUCL) conducted
a fact-finding in 2006 in some of the camps, after which
it reported that the living conditions in the camps are
deplorable, with lack of proper accommodation, inadequate
number of toilets, inadequate supply of electricity, negligible
medical facilities and lack of cleaning by the concerned
municipality. Those refugees who have been unable to get
themselves registered remain deprived of any facilities.54
2. Arbitrary arrests and detentions

The same PUCL report found that (t)hose newly arrived
(at the camps) are quarantined under police custody at
the Mandapam Camp. This is a prison house. When we
visited, 39 people were confined to the quarantine (nearly
20ft/20ft) for males. The legal tenability of placing
refugees under such detention is questionable.
3. Special Camps
53
Janardhanan, Arun. Explained: The Sri Lankan Refugee Question The Indian
Express. 31 January, 2015.
54
PUCL. Conditions in Sri Lankan Tamil refugee camps. 18 June, 2006.
78 SAHR
Special camps have been set up purportedly to protect

vulnerable refugees, but these are actually for detaining
persons who are suspected of terrorist links. According to
one report, in 1990 January, the Tamil Nadu Government
picked up 1700 camp refugees, including 72 children
below 12 years of age, and incarcerated them in Vellore
till 1995.55 They were later put in special camps to protect
vulnerable refugees. In another incident, 18 boys were
arrested and moved to special jails in 1997.
4. Violations during repatriation

Errors and misleading information during repatriation
of Sri Lankan Tamils to Sri Lanka have been well
documented, violating the basic international law of non-
refoulement. According to one writer:
No attempt was made to evaluate the situations prevailing

at the place of origin of the people to ascertain whether the
time was right to send them back. The refugees were asked
to leave on short notice; many of them were asked to sign
a voluntary consent form just before boarding the ship.
They were sent to places like Mannar, Jaffna, Kilinochi and
Wanni, where the LTTE was gearing up for battle against
the IPKF56 and Sri Lankan army.57
55
Raj, Fr. C. Amal. Srilankan Tamil Refugees in India: Accords, people and UNHCR.
States, Citizens and Outsiders: The Uprooted Peoples of South Asia. Ed. Manchanda,
Rita and Bose, Tapan. South Asian Forum for Human Rights, Kathmandu, 1997.
56
Indian Peace Keeping Force - the military contingent that carried out peacekeeping
missions between 1987 and 1990
57
Op cit 147
Another writer,58 while critiquing the flawed strategy

followed by the Government of India while repatriating
refugees to Sri Lanka, observes that it was unfair of
the Government not to give the refugees an option,
and unrealistic to give them 3 to 5 days notice to leave
the camps. Tightening of security outside camps, thus
hindering the refugees ability to go out for work, was
combined with withdrawal of ration cards, curtailment
of education facilities, and beatings. This at a time when
the third Eelam war had commenced and the situation in
Sri Lanka was uncertain at best. As one writer observes:
As part of its protection mandate the UNHCR is expected to

share information with the Tamil refugees about the conflict
situation in the country of origin. It informed the refugees
that certain liberated zones were safe for them to go back to.
Repatriated back to Sri Lanka, the refugees found that they
could not go back to their native place.59
Indeed, according to some reports, the UNHCR has also

been accused of colluding with the local government in
forced repatriations, and misleading the Tamil refugees,
thereby violating the principle of non-refoulement which
it is mandated to promote.
58
Hans, Asha. Repatriation of the Sri Lankan Refugees from India Bulletin on
International Humanitarian Law and Refugee Law. New Delhi. Vol. 2, No. 1. January-
June 1997. pp 93-122
59
Op cit 147
80 SAHR
Hindus from Pakistan

The minority Hindu population in Pakistan often faces religious
persecution, with girls being particularly targeted. The percentage
of the population of Hindus in Pakistan, which was about 15% at
the time of partition in 1947, has now been reduced to less than
2%. Not surprisingly, the greatest influx of Hindus from Pakistan
has been into the border areas of India, particularly Rajasthan. It
is estimated that approximately 1000 people cross into India every
year. During war time, or other skirmishes between the countries,
or even attacks on Muslims in India (such as during the attack
following the demolition of the Babri Masjid in 1992) the number
of refugees is seen to increase. There are over 400 refugee settlements
across Rajasthan, but the plight of these places is deplorable. They
lack basic infrastructure and facilities, and the refugees are often
seen to be suffering from physical manifestations of psychosomatic
disorders.60
It is unfortunate that the status of these refugees does not improve

upon arrival in India. They are treated with suspicion for having
come from Pakistan. In addition, under the Citizenship Act, 1966
there are specific barriers to the grant of citizenship to persons
from Pakistan, although efforts have been made to address the
problem through recent statutory ammendments. While some are
unable to obtain naturalized citizenship as a result of the discretion
of government officials, others are unable to meet the high costs
involved. Like other refugees in India, they are treated as foreigners
and are therefore unable to get jobs, BPL certificates, and a large
number of them are unable to get caste certificates despite being
dalits. Often their educational qualifications from Pakistan are not
60
The Hindu American Foundation. Victims of History: The Untold Story of
Pakistani Hindus Refugees in India. March 31, 2014.
recognized in India. If at all, their only means of identification being

their Pakistani passports, they become vulnerable once these expire,
leaving them stateless.61
The Indian government has also imposed a number of restrictions

on the grant of visas to border areas. This means that families on the
other side of the border are unable to visit, causing further anguish.
It is not unusual for cross-border marriage ceremonies to take
place, and while women who marry into Pakistan attain Pakistani
citizenship within 2 years, the reverse is much more difficult.62
Status of Refugees in Pakistan

Article 40 of the Constitution of Pakistan states that the government
would act towards (s)trengthening bonds with Muslim world and
promoting international peace. The State shall endeavour to preserve
and strengthen fraternal relations among Muslim countries based
on Islamic unity, support the common interests of the peoples of
Asia, Africa and Latin America, promote international peace and
security, foster goodwill and friendly relations among all nations
and encourage the settlement of international disputes by peaceful
means.
However, Pakistan is neither a party to the 1951 Convention nor

the 1967 Protocol relating to the Status of Refugees. Similar to
India and Bangladesh, refugees are subject to the same law as illegal
aliens.63 Since there is no refugee-specific law, asylum seekers and
61
Ibid
62
Gill, Bani. Border Dialogues. Peace Prints: South Asia Journal of Peace Building.
Vol 4, No. 2. 2012.
63
This includes the Foreigners (Amendment) Ordinance, 2000; the Foreigners Order
of Pakistan, 1951; Pakistan Citizenship Act, 1951; the Foreigners Act of Pakistan,
82 SAHR
refugees are dealt with through ad-hoc administrative arrangements

that are generally arbitrary and discriminatory. Although over the
years the state has amended existing laws and devised mechanisms
for the management of refugee issues, these measures have not been
comprehensive.64
Afghan refugees in Pakistan

In the wake of the Soviet invasion of Afghanistan, Pakistan has
absorbed a large number of refugees, many of whom it continues to
host. Three million refugees65 crossed the open border to Baluchistan
in the post-war era. Unfortunately, this migration was accompanied
by militancy and an attendant Kalashnikov culture. More recently,
the prevalence of small arms and the penetration of the region by
militants have resulted in a situation of rapidly deteriorating security.
Using refugee movements as a cover for border transit, terrorist
militant groups are able to move undetected.66
Afghan refugees have been flowing into Pakistan since the 1970s,
and the government has made sporadic efforts to register such
refugees and provide them with a modicum of legal protection.
There are about 1.6 million registered and an estimated 1 million
unregistered Afghans residing in Pakistan.67 In the initial years,
1946; the Registration of Claims Act, 1956; the Displaced Persons (Compensation
and Rehabilitation) Act, 1958.
64
Sheikh, A.R. Towards A Legal Regime for Refugee protection in Pakistan. Refugee
Watch. Volume 18. April 2003.
65
Neil, Alexander, ed. Towards Cross-Border Security. Page 3: Royal United Services
Institute (RUSI), 2010. Print. (At page 12.)
66
Ibid. page 15.
67
Khan, Muhammad Abbas. Pakistans national refugee policy. Forced Migration
Review.Vol. 46. May 2014. pp. 22-23. See also State of Human Rights. Refugees.
2014.
the refugees were issued passbooks which entitled them to receive

assistance. The passbooks, however, did not provide identification,
and as such, gave no legal protection.
The condition and status of these refugees has attracted the attention
of national as well as international human rights organisations.
According to a study by Human Rights Watch:
Outside of these isolated cases, throughout the past decade,

and contrary to international standards including ExCom
Conclusion No. 91,68 the majority of Afghan refugees in
Pakistan have not been registered, granted legal status, or
issued identity documents. In addition, starting from late 1999
the government refused to consider newly arriving Afghans as
prima facie refugees.69
Pakistan has had an on-again, off-again approach to the Afghan

refugees taking shelter in its territory, the consequences of which
have been enormous. In November 2000, Pakistan officially closed
its border with Afghanistan, citing an inability to absorb the 30,000
refugees who had arrived in the previous two months, as well as the
thousands more expected to arrive in the coming days. In January
2001, the Governor of Pakistans Khyber Pakhtunkhwa (previously
known as North West Frontier Province), and thereafter the
Federal government, issued public orders empowering the police
to detain and deport newly arrived Afghans in the NWFP and all
undocumented Afghans already in Pakistan. New arrivals who were
not detained or deported were shifted to refugee camps, where the
68
Executive Committee Conclusion No. 91: Registration of refugees and asylum-
seekers. UNHCR. 2001
69
Human Rights Watch. Closed Door Policy: Afghan Refugees in Pakistan and Iran.
Vol. 14, No. 2(G). 2002.
84 SAHR
deplorable living conditions have been consistently criticized. The

UNHCR was denied access to these camps, stalling the refugee
registration process which could have allowed food and non-food
supplies to be provided.70
In August 2001, there was some improvement, both in the conditions

of the camps and in the status of the UNHCR. The government
entered into an agreement with the UNHCR, under which thirty
UNHCR and government teams were to interview an estimated
180,000 Afghans in the NWFP to determine their eligibility for
relief and refugee status, focusing mainly on new Jalozai, Nasirbagh
and Shamshatoo camps.71 However, these advancements were
soon lost when, a few months into the agreement, Pakistan forcibly
repatriated about 150,000 Afghan refugees who had not yet been
assessed under the screening programme. UNHCR was clearly
dismayed by this breach of the agreement, and by reports that some
of these repatriated Afghan refugees included unaccompanied
children.
With the 9/11 attacks on the United States, there was a further
surge in refugees from Afghanistan into Pakistan, but the screening
programme could not be reinstated.72 Without official registration,
newly arrived refugees do not have the necessary documentation, or
passbooks, required to obtain assistance. This means that refugees
have to rely on the generosity of their longer-established relatives in
the camps to share their rations.73
70
Ibid. p.19-20
71
Ibid. p.21.
72
Ibid. p.22
73
Ibid. p.29
In 2005-06, a one-off registration exercise for Afghans in Pakistan

was conducted. All those who registered with Pakistans National
Database and Registration Authority (NADRA) received Proof
of Registration (PoR) cards. The holders of these cards could be
protected against expulsion through mechanisms facilitated by the
UNHCR. Since then, no new registration has taken place except
for children born to registered Afghans. On 25th July, 2013 the
government adopted the National Policy on Management and
Repatriation of Afghan Refugees, which was approved by the Federal
Cabinet. This policy seeks to focus on voluntary repatriation in safety
and dignity as the most preferred option, sustainable reintegration
inside Afghanistan, and assistance to refugee host communities. It
calls for extending the PoR Cards and the tripartite agreement till
December 31, 2015.74
The UNHCR has played a role in ensuring agreements between

Pakistan and Afghanistan regarding repatriation of refugees.75
Presently, an agreement between Pakistan, Afghanistan and
UNHCR administers voluntary and gradual repatriation of
registered Afghan refugees living in Pakistan. According to official
sources, over 3,840,000 Afghan refugees have repatriated on their
own since March 2002 under this tripartite pact, which has now
allowed each returnee to USD 200 from UNHCR.
However, there are reports that repatriation has been done in a forced
manner. Similar to other examples examined earlier in this study,
74
Bhutta, Zafar. New policy to guide Afghan repatriation till 2015. The Express
Tribune. August 4, 2013, https://tribune.com.pk/story/586277/new-policy-to-
guide-afghan-repatriation-till-2015/ and Pakistan Factsheet: September 2014,
UNHCR.
75
For details of agreements, see: Zieck, Marjoleine. The Legal Status of Afghan
Refugees in Pakistan: A Story of Eight Agreements and Two Suppressed Premises.
OUP. 2008.
86 SAHR
there is evidence to show that Pakistan has pushed the repatriation

drive by creating harsh conditions for Afghan refugees.76 According
to the Human Rights Commission of Pakistan (HRCP),77 the
government created an environment of fear and persecution to force
many refugees out.78 Electricity was cut off in the villages and camps,
houses were destroyed, camps were closed down and thousands of
refugees were pressured to leave against their will. The HRCP also
notes that state policy has empowered the police to make random
arrests without warrants, and refugees are often victims of harassment
and beatings by law enforcement officials.
Tragically, whenever there are terror attacks in Pakistan a shadow of

suspicion falls on refugees from Afghanistan, sometimes followed by
acts of violent, misdirected retaliation. According to one report, the
aftermath of the 16th December 2014 attack on a public school in
Peshawar, where 132 children and 9 adults were killed, saw a massive
exodus of Afghan refugees. The drive came from the Pakistan
government, which has included the repatriation of refugees in its
new anti-terror action plan. According to one report:
Nearly 52,000 Afghans living in Pakistan have, within the

past ten weeks, packed their belongings and crossed the border
back into Afghanistan more than twice as many as in the
whole 12 months of 2014.At the same time, the countdown
76
Hiegemann. Valentina. Repatriation of Afghan Refugees in Pakistan: Voluntary?.
Oxford Monitor of Forced Migration. Vol. 4, No. 1.
77
The Human Rights Commission of Pakistan was registered in 1987 under the
provisions of the Companies Ordinance, 1984. Societies Registration Act (XXI of
1860)
78
Human Rights Commission of Pakistan. Afghan Refugees in Pakistan: Push comes
to shove. April 2009. pp 23 - 26.
is running on the validity of the ID cards that allows

registeredrefugees to stay in Pakistan.79
The UNHCR in Pakistan was also assisting some 666 non-Afghan

asylum-seekers and refugees, mostly from Somalia, Iran and Iraq.80
However, it is the presence of the large number of Afghan refugees
residing in Pakistan which remains its biggest challenge. Intense
societal hostility about the impact of Afghan refugees on resource
scarcity and security in the host country has only exacerbated the
hurdles faced by UNHCR in this area.
Status of Refugees in Bangladesh

The legal situation of refugees in Bangladesh is similar to that in
India, in that it is neither a party to the 1951 Convention nor its
protocol of 1967. Bangladesh does not possess any national laws
to define and regulate the status of refugees. Although the country
has acceded to a number of international human rights tools which
circuitously uphold the rights of refugees, in reality such conventions
are not enforceable in courts of law unless specific provisions are
incorporated into existing municipal laws or given effect through
separate legislations.81
The result is that refugees are considered foreigners, and are governed
by the numerous statutory laws in this regard.82 In the absence of
79
Roehrs, Christine. The Refugee dilemma: Afghans in Pakistan between expulsion
and falling aid schemes Afghanistan Analysts Network. 9 March, 2015.
80
HRCP Annual Report 2014 Accessed on 25 August 2016, at http://docslide.us/
documents/hrcp-annual-report-2014-englishpdf.html
81
Mohammad, Nour. Refugee Protection Under the Constitution of Bangladesh: A
Brief Overview, Bangladesh. Refugee Watch. 29, June 2012
82
This includes the Foreigners Act, 1946; Registration of Foreigners Act, 1939;
Passport Act, 1920; the Bangladesh Control of Entry Act, 1952; Extradition Act,
1974; Naturalization Act, 1926; etc.
88 SAHR
any legal or specialized statutory framework for the protection of

refugees, Bangladesh relies on these statutes to govern the entry, stay
and exit of foreigners.83 Citizenship laws further make it difficult for
refugees to become naturalised over time.84
The Constitution contains provisions which require adherence to

basic international principles, such as Article 25 which requires that
(t)he state shall base its international relations on the principles of respect
for national sovereignty and equality, non-interference in the internal
affairs of other countries, peaceful settlement of international disputes,
and respect for international law and the principles enunciated in the
United Nations Charter.
Regarding the applicability of International covenant law as well as

customs and their interface with municipal laws, there have been a few
judgments by the Bangladesh courts. In Bangladesh vs. Unimarine
S.A. Panama and Others85 the court stipulated that customary
international law is binding on the state, and usually makes the rules
and norms of the customary international law operative. The court
referred to the rule of immunity of foreign missions, envoys, etc., as
worthy instances of the customary international law which would be
binding on the state. The question whether private foreign companies
enjoy immunity from arrest and seizures cropped up in this regard.
83
Mohammad, Nour. Refugee Protection under the Constitution of Bangladesh: A
Brief Overview, Bangladesh. Refugee Watch. 29, June 2012.
84
The Constitution of Bangladesh, the Bangladesh Citizenship (Temporary Provision)
Order, 1972 and the Bangladesh Citizenship Order, 1972 govern this area of law.
See also, Hassan Faruk Al Imran and Md. Nannu Mian, Department of Law, Uttara
University, Dhaka, Bangladesh The Rohingya Refugees in Bangladesh: A Vulnerable
Group in Law and Policy, Journal of Studies in Social Sciences, Volume 8, Number
2, 2014, pp. 226-253.
85
Bangladesh vs. Unimarine SA Panama & Ors., 1977, 6 CLC (HCD) [5231] Also at
29 DLR (1977) 186
The court rejected the argument that such immunity be accorded to

private foreign companies, or that they be protected from arrest and
seizures, observing:
Immunity is available under the public international law

to persons and properties of classified companies as mentioned
in the list which is usually filed by foreign missions and
international agencies.
When there is a clear domestic legislation on a disputed issue, the

courts in Bangladesh, as in India, have decreed that effect be given
to the domestic law, and not to the customary norms of international
law. In Bangladesh and Others vs. Sombon Asavhan86 the
Bangladeshi navy captured three Thai fishing trawlers for illegally
entering and fishing in the countrys territorial waters. The question
was whether the trawlers were within the territorial waters or the
EEZ of Bangladesh. Instead of applying the existing international
law regarding the territorial waters, the Supreme Court settled the
issue on the basis of Bangladeshi Territorial Waters and Maritime
Zones Act, 1974 which laid down specific provision for maritime
boundaries for the country. The Appellate Division of the Supreme
Court observed as follows:
It is well settled that where there is a municipal law on an

international subject the national courts function is to enforce
the municipal law within the plain meaning of the statute.
86
Bangladesh & Ors. vs. Sombon Asavhan 32 DLR (1980), p. 198
90 SAHR
The position of law was stated with utmost clarity in Hussain

Muhammad Ershad v. Bangladesh and Others87 where the court
observed,
The local laws, both constitutional and statutory, are not always
in consonance with the norms contained in the international
human rights instruments But in the cases where the
domestic laws are clear and inconsistent with the international
obligations of the state concerned, the courts will be obliged to
respect the national laws, but shall draw the attention of the
law makers to such inconsistencies.
Asylum seekers are accorded refugee status by the Government of

Bangladesh under executive order, which remains discretionary. As
a result, at the ground level refugees are dealt with arbitrarily by
the Bangladesh authorities. For example, during 1978 and the time
between1991 to 1992, the Rohingya asylum seekers from Myanmar
were provided prima facie refugee status under executive orders of
the government of Bangladesh. During this period, the government
invited the UNHCR to launch its operation in Bangladesh, and also
allowed both national and international NGOs to participate in the
refugee operations. However, the same standards are not adopted for
other refugees.
There has been some litigation regarding the status of refugees in

Bangladesh courts. A significant ruling was delivered by the High
Court Division of Bangladesh in May 2003 in Abid Khan and
Others vs. Government of Bangladesh.88 This judgment granted
voting rights to ten Urdu-speaking people from Bangladesh
87
Hussain Muhammad Ershad vs. Bangladesh & Others, 2000, 29 CLC (AD). This case
has also been reported in 21 (2001) BLD (AD) 69.
88
Abid Khan and Ors (Md) v. Government of Bangladesh, (2003) 23 BLD (HCD) 364.
rendered stateless by the 1971 war89 and declared that they were
citizens of Bangladesh. Subsequently, on 18 May 2008, in the case
of Md. Sadaqat Khan, the Supreme Court of Bangladesh (High
Court Division) reaffirmed that all members of the Urdu-speaking
community were nationals of Bangladesh in accordance with its laws
and directed the Election Commission to enroll the petitioners and
other Urdu-speaking people who want to be enrolled in the electoral rolls
and accordingly, give them National Identity Card without any further
delay.90
Compliance in Nepal and Bhutan: the problem of Ethnic

Nepalese Refugees from Bhutan
Over 100,000 people from Bhutan were found in UN refugee camps

in Nepal after Bhutan adopted the one nation, one people policy.
Although a majority of these refugees have been relocated and
resettled in other countries, a significant number continue to exist in
a twilight zone of statelessness, as no country is willing to give them
citizenship. Efforts to repatriate them to Bhutan have resulted in
violent attacks against them.
The crisis being faced by ethnic Nepalese refugees from Bhutan has
been well documented over the last 35 years since the problem began.
In the early 1980s, a large number of Hindu Nepalese who had settled
in Bhutan, also known as Lhotshampas, started facing harassment as
they were seen as a threat to the ethnic Bhutanese culture, which is
predominantly Buddhist. Several measures taken by the government
tended to exacerbate the situation. This included the one nation, one
89
Urdu speaking refugees stranded in Bangladesh after the 1971 war are known as
Biharis.
90
Mohammad Nour Md. Sadaqat Khan (Fakku) & Ors. vs. Chief Election Commissioner,
Bangladesh Election Commission, (2008) 28 BLD (HCD) 261
92 SAHR
people policy, restricting government jobs, and banning Nepalese as

a second language in educational institutions. With the Citizenship
Act in 1985, several ethnic Nepalese individuals residing in Bhutan
lost their status as citizens.
Not surprisingly, by 1988 these people had begun to migrate out

of Bhutan and into Nepal on the one hand, and the Indian states
of West Bengal, Assam or Sikkim on the other. Violence erupted
and tens of thousands of Nepalese fled to refugee camps in Nepal.
It is estimated that approximately 100,000 refugees lived in UN-
supervised camps in Nepal. However, since Nepal does not grant
citizenship to refugees, their status has remained precarious.
Those that migrated to India also found themselves vulnerable as

India does not allow refugees to enter its territories between Bhutan
and Nepal, nor does it allow them work permits. Even today, there
are between15,000 to 30,000 Lhotshampas who are exiled in India,
but they have not been given refugee status and are ineligible for
UNHCR assistance.91
In the year 2000, the Bhutanese government decided to allow certain

classes of the refugees to return to Bhutan, but this decision was
met with violent reactions from the Bhutanese people. By this time
the UN had also terminated a number of its services, particularly
in the area of education. As Bhutans unwillingness to take these
people back persisted, in 2006 many countries such as the USA and
Australia offered to settle them in their countries.92 By April 2014,
91
Eli, Jenelle. Lhotshampas: Evicted from Bhutan. Info Change News & Features. July
2008
92
Human Rights Watch. Last Hope: The Need for Durable Solutions for Bhutanese
Refugees in Nepal and India. 2007.
about 75,000 refugees had been resettled in the USA and about
13,000 in other countries.93
However, all is not well with those thus resettled, and there have
been tragic reports regarding the high incidence of depression
and suicide among these populations. According to a report by
the Center for Disease Control and Prevention, in the three years
leading up to February 2012, the rate of suicide among Bhutanese
refugees resettled in America was 20.3 per 100,000 people.94
In 2014, around 26,000 ethnic Nepalese from Bhutan still lived in

refugee camps in Nepal, located near the Indian border and less than
300 miles from their home country. Over 13,000 were waiting to
migrate from the camps to Western countries through the ongoing
resettlement programme.95Another estimate is that in January 2014,
the Bhutanese refugee population in Nepal was 30,977 individuals,
and by the end of 2014, there remained around 18,000-19,000
refugees without any durable solutions to their situation.96 In
January, 2016 the EU contributed 2 million to the UNHCR which
had 17,000 refugees in two camps across Nepal.97 They continue to
hold the status of stateless individuals. Those in the camps, as well
93
US Department of State, Bureau of Population, Refugees, and Migration (PRM),
Worldwide Refugee Admissions Processing System (WRAPS)
94
Mishra, T.P. American Dream Becomes Nightmare for Bhutanese Refugees. India
Realtime. 7 January 2014.
95
Ibid.
96
ICMC Europe, Bhutanese Refugees In Nepal. Retrieved from: http://www.
resettlement.eu/page/bhutanese-refugees-nepal
97
The Himalayan Times. EU supports UNHCR in protecting Bhutanese refugees in
Nepal. January 13, 2016, https://thehimalayantimes.com/nepal/eu-supports-unhcr-
in-protecting-bhutanese-refugees-in-nepal/ . Kathmandu, Nepal.
94 SAHR
as those resettled in third countries, have not been able to regain a

sense of belonging.98
As for the refugees themselves, despite being excluded from the

Bhutan/Nepal negotiations and banned by UNHCR from
political activity in the camps, they have mobilized to insist on
their repatriation to Bhutan, the state that they regard as their
own.99
An offshoot of this lingering uncertainty is that a number of

insurgent groups have been able to take advantage of the dislocated
populations and find root there. This includes the Bhutan Communist
Party (Marxist-Leninist-Maoist), the Bhutan Tiger Force and the
United Revolutionary Front of Bhutan, to name a few. Indeed, the
Bhutanese security forces believe these groups are behind the wave
of bombings that rocked the Kingdom in the run-up to the 2008
parliamentary elections.
The political and historical compulsions of regional actors have

made it difficult to find a lasting solution to this refugee crisis. The
situation is made even worse by the vacuum in legal protections
available to refugees. Although Nepal is party to the overarching
UN conventions on civil, political and socio-economic rights, such
as the UDHR, ICCPR, UNCRC, and so on, it has not ratified the
1951 Convention or its 1967 Protocol, nor has it ratified the 1954
and 1961 Conventions on statelessness. Furthermore, Nepal does
not have any national legislation on the subject of refugees. The
legal status of asylum seekers and refugees in Nepal is governed by
98
Concoran, Ann. Bhutanese refugees in Ohio need more costly mental health care
due to high suiciderate. Refugee Resettlement Watch. July 31, 2015.
99
Khan, Gerrard. New Issues In Refugee Research: UNHCR working paper no. 47.
Citizenship and statelessness in South Asia. October 2001.
the statutory law as related to foreigners100 and by administrative

directives, leaving the legal status of the Bhutanese refugees in Nepal
far from secure.101Although Nepal allows the Bhutanese refugees to
remain on its territory, it accords them few legal rights.
In August 1991, the Government of Nepal invited UNHCR to help

out with the problem. Most of the refugees lived in camps run by
the UNHCR for years. They have been provided relief and support
by UNHCR, the World Food Programme, the Lutheran World
Federation, Caritas, AMDA, and the Nepal Bar Association. From
time to time, concerns have been raised by civil society organizations
about the budgetary cuts that UNHCR made after a few years of
their support.102
The situation in Bhutan regarding ratification of international refugee

laws is the same as Nepal and other countries in South Asia. None
of the specific conventions on refugees have been ratified, and there
is no domestic legislation protecting these vulnerable populations.
However, an additional matter of concern is that Bhutan has openly

flouted all international norms in violating rights of thousands of
ethnic Nepalese who should rightly be recognised as citizens. These
actions have forced them to flee their homes to live as refugees on
foreign soil for decades, and then successfully prevented them from
returning to Bhutan.103
100
The national laws that govern refugees in Nepal are: Interim Constitution of Nepal,
2007; the Nepal Citizenship Act, 2006; The Immigration Act ,1992; and The
Extradition Act, 1988.
101
Human Rights Watch. Last Hope: The Need for Durable Solutions for Bhutanese
Refugees in Nepal and India. HRLN. 2007 (See Chapter IX for details)
102
Ibid.
103
See HRW report for details: Ibid.
96 SAHR
The government of Bhutans resistance to repatriation of refugees

has been a major cause of suffering. In addition, Bhutan has not
allowed the UNHCR to set up its operations in the country. There is
also no UN agency or other human rights agency in Bhutan.104
The unreasonableness of the Bhutan government can be gauged

also from the flawed categorization process adopted in camps. The
Bhutanese government, in collaboration with the government of
Nepal and without the international communitys participation, has
set up a system of categorization of camp residents that effectively
denies refugees the right of return, as under:105
1. Bona fide Bhutanese who have been forcibly evicted;
2. Bhutanese who have voluntarily emigrated;
3. Non-Bhutanese people;
4. Bhutanese who have committed criminal acts.
While the Bhutanese government defends the above categorization

by maintaining that many camp residents are actually Nepalese taking
advantage of UNHCR charity, these classifications are confusing
and fiercely contested by the Lhotshampas themselves. According
to them, this classification fails to take into account the historical
process which resulted in the exodus, namely the resettlement of
Drukpa Bhutanese on vacated lands, to which the Lhotshampas
will be unable to return. The Bhutan government further requires
that refugees who fall within the second category, on their return
to Bhutan, reside in a camp for three years, after which they will
be evaluated on their knowledge of Bhutanese history, culture, and
the Dzongkha language. This is indeed a burdensome process of
104
Ibid.
105
Ibid.
naturalization. In addition, bona fide Lhotshampas falling within

the third category, those who could not prove residence in Bhutan,
are left stateless. Finally, those in the fourth category will, on their
return to Bhutan, be tried for their alleged crimes.
This recalcitrant attitude of the Bhutan government violates its

commitments under a plethora of international conventions relating
to the protection of human rights of individuals. More so, the plight
of the Lhotshampas is a violation of its own Constitution. The newly
formed Bhutanese Constitution of 2008 explicitly grants universal
standing to all people, not just citizens, to approach the courts for
the enforcement of the rights conferred by the Constitution. In
particular, there are three key provisions in the Constitution which
are noteworthy:106
1. The Constitution establishes Buddhism as the states

spiritual heritage which it describes as promoting the
principles and values of peace, nonviolence, compassion
and tolerance.107 Such compassion, which is a sine qua
non of a Buddhist state, must be interpreted to include
the dispossessed, such as the Lhotshampas.
2. The Constitution contains an important equality clause,

stating that (a)ll persons are equal before the law and
are entitled to equal and effective protection of the law
and shall not be discriminated against on the grounds of
race, sex, language, religion, politics or other status.108
106
Ferraro, Matthew F. Addressing Bhutans Refugee Crisis Through the Courts The
Diplomat. July 23, 2013, http://thediplomat.com/2013/07/addressing-bhutans-
refugee-crisis-through-the-courts/ .
107
Article 3(1) , The Constitution of the Kingdom of Bhutan, 2008
108
Article 7(15).
98 SAHR
Under such an equality clause, the denial of citizenship

to the Lhotshampas and forcing them into exile, is a
clear violation.
3. An important principle of state policy is stated to

be that it shall endeavour to promote goodwill and
co-operation with nations, [and] foster respect for
international law and treaty obligations109 As
stated earlier, the treatment of the Lhotshampas has
contravened numerous obligations of Bhutan under
international laws and conventions.
The leaders of Nepal and Bhutan had promised to try and repatriate
the refugees before the elections, which many refugee leaders believe
is the only acceptable path. However, there has been little progress
on this front. As has been observed in a recent report by the Human
Rights Watch:
One of the core components of international protection for

refugees is finding durable solutions. The refugee regime
offers three durable solutions for refugees: voluntary
repatriation, local integration in the region of displacement,
or resettlement in a third country (emphasis added in the
original). The principal objective of each durable solution is to
restore national protection to refugees. Sixteen years after the
first ethnic Nepalese fled or were expelled from Bhutan the
Bhutanese refugees are still awaiting a durable solution. While
the Bhutanese refugees have found basic protection in Nepal,
the continuing confinement of more than 100,000 refugees to
109
Article 9(24).
camps is clearly not sustainable either for the refugees or for the
international community.110
Refugees in Sri Lanka

Sri Lanka has produced more refugees than it has received, since
a lot of people have fled the country. This is mainly because of the
three decade long ethnic conflict which lasted till 2009.
The UNHCR in Sri Lanka was established in 1987. In Sri Lanka

the UNHCR tried the concept of open camps for people to stay in
case of emergency. Unfortunately, one of the camps in Pesalai was
attacked by the Sri Lankan army and a number of refugees were
picked up for questioning from there.111
There have also been recent reports of forcible deportation of

refugees from Sri Lanka to their country of origin, clearly in flagrant
violation of the international principle of non-refoulement.112 The
Sri Lankan government in 2014113 acknowledged that there were
about 1500 Pakistani and Afghan nationals who were staying in the
country illegally and 205 of them were being held in detention. The
government defended its actions in deporting Pakistani Ahmadiyya,
Christian and Shia Muslim asylum seekers, stating that these refugees
are a drain on the islands resources, and its international obligations
110
Op cit 193;
111
Op cit 147.
112
There are reports regarding court orders directing stay of such deportations in some
cases. However, the decisions could not be located and hence are not referred to here.
113
Press Trust of India. UNHCR asks Lanka to stop deporting Pakistani asylum
seekers. (Colombo). Business Standard. August 6, 2014, http://www.business-
standard.com/article/pti-stories/unhcr-asks-lanka-to-stop-deporting-pakistani-
asylum-seekers-114080600373_1.html .
100 SAHR
have to be nuanced and balanced by domestic compulsions. This

situation came to light when UNHCR objected to the forcible
deportation of 36 Pakistani asylum seekers from Sri Lanka in the
first week of August, 2014, with more expected to follow.
International human rights organisations have also raised concerns

regarding the fate of civilians caught in the conflict zone during the
final stages of the war which ended in 2009. Accordingly, there are
thousands of IDPs in Sri Lanka.
According to the UNHCR, the numbers of IDPs in Sri Lanka were:
Residing in Sri Lanka

Refugees 511
Asylum Seekers 950
Returned Refugees 504
Internally Displaced Persons (IDPs) 30,847
Stateless Persons 0
Various 0
Total Population of Concern 33,170
*As of December 2014
The UNHCR has also estimated that there are 123,028 documented
refugees originating from Sri Lanka in different parts of the world.
The status of Sri Lankan refugees in India has been examined in
some detail earlier, including the serious rights violations at camps
and forced repatriations.
According to a UN report114 published in 2011, the 2009 operations

saw both sides committing war crimes against civilians.115 The
Sri Lankan government has rejected this, and subsequent reports as
biased.
A detailed examination of the status of refugees in the region clearly

demonstrates that the mechanisms for handling this complex and
difficult issue are neither fully in place, nor are the limited mechanisms
fully functional. Domestic administrative processes and institutions
are unable to transcend the mindset of the alien in the application of
the law to refugees, and are prone to view such persons with suspicion.
The only international mechanism which exists for this purpose, the
UNHCR, is unable to meet even the minimum requirements of its
mandate in light of the restrictive attitude of many of the countries
regarding its role. We also find that even within the limited domain
within which the UNHCR is permitted to operate, it tends to focus
its energies on the mandate refugees, and makes no effort to expand
its area of operation by providing assistance to the vast swathes of
economic refugees who are in extreme distress, even though they
face no political threat as such.
114
Report of the Secretary Generals Panel of Experts on the Accountability in Sri
Lanka. United Nations. March 31, 2011.
115
Human Rights Watch. We Will Teach You a Lesson: Sexual Violence against
Tamils by Sri Lankan Security Forces. 2013.
102 SAHR
Law and Practice of Immunity to

Security Forces at Border Areas
Considerable information exists regarding arrests, detention, and
other human rights violations by security forces against people living
in border areas. Here we will be exploring how the nature of human
rights violations by security forces is closely correlated to whether
the diplomatic relations between the two concerned countries are
friendly or hostile. This determines the kind of powers vested in the
security forces, but even more importantly, what is the kind of legal
immunity they enjoy.
It is a truism that security forces, when sheltered under provisions of

legal immunity (such as the need to obtain sanction for prosecution
for crimes committed by them) tend to abuse their special status.
In border areas, this becomes greatly amplified, with normalization

of abuses against persons who may be illegal migrants, or persons
helping such illegal migrants. For instance, at the Bangladesh border,
Indian security forces have been given carte blanche to shoot-at-
sight illegal immigrants, something which is not permitted by the
domestic law of either country, or indeed by international law.1 On
1
Adams, Brad. Indias shoot-to-kill policy on the Bangladesh border. The Guardian.
January 23,2011, https://www.theguardian.com/commentisfree/libertycentral/2011/
jan/23/india-bangladesh-border-shoot-to-kill-policy .
the India-Nepal border, in spite of the greater degree of freedom

relative to other border areas, human rights violations are also
continuing - to the extent that entire villages have been forced to
flee and re-locate. In particular, sexual abuse of women seems to be
a serious problem. In this section we will be exploring how and why
these human rights abuses are taking place.
To a greater or lesser degree, all the countries under study provide

special status to the armed forces insofar as prosecution for criminal
offences is concerned, with statutory provisions requiring the
establishment of military or security courts for the prosecution of
offences committed by armed forces personnel. In addition, some
countries also have specific provisions where criminal prosecutions
of military and armed forces personnel in the ordinary criminal
courts (also known as civil or civilian courts in armed forces
parlance) require the specific sanction of the government. Again,
these protections extend, to a greater or lesser degree, to the police
and paramilitary forces in the specific statutes that govern them or
in the general laws.
Civil society organisations in these countries have on a sustained

basis made unambiguous critiques of the various laws which protect
the armed forces and security forces insofar as violations of human
rights are concerned.2 These protections are found in constitutional
provisions, statutory legislations, in executive actions and judicial
pronouncements, and create a pervasive atmosphere of impunity,
which becomes increasingly pronounced in border areas where
the perception of threat by the enemy provides a further layer of
protection against prosecutions for human rights violations.
2
Peoples Union for Democratic Rights, Concept Note on Impunity to Armed Forces.
11 July 2014. Retrieved from: http://e-pao.net/epSubPageExtractor.asp?src=news_
section.opinions.Opinion_on_Killing_of_Manorama.Impunity_to_the_Armed_
Forces_in_Armed_Conflict_Areas_By_Seram_Rojesh
104 SAHR
The legal dispensation provides several kinds of immunity. For the

purpose of the present examination, we will look at three different
kinds of laws- those that override ordinary criminal laws in favour of
the armed forces in the border areas, laws which shield armed forces
personnel from criminal prosecutions by requiring prior sanction
from the government, and laws which subordinate the ordinary
criminal courts to the martial courts or special forces courts. While
there are significant differences in the laws which govern the different
countries, there are striking similarities in the overarching approach
of the law to the armed forces.
Special Laws Overriding the Extant Criminal Laws

In India, special dispensation regarding the powers of Armed
Forces in civilian operations has been put into place through the
Armed Forces (Special Powers) Act, 1958 (for the North East States)
and the Armed Forces ( Jammu & Kashmir) Special Powers Act, 1990
(for J&K). Under this dispensation, the Governor can declare an
area disturbed area vide section 3 where it is found that there is a
disturbed or dangerous condition requiring the use of armed forces
in aid of civil power.
Section 4 gives the power to any commissioned officer, warrant

officer, non-commissioned officer or any person of equivalent rank
in the armed forces in a disturbed area to fire upon or otherwise
use force, even to the causing of death, against any person who is acting
in contravention of any law or order for the time being in force in the
disturbed area prohibiting the assembly of five or more persons or the
carrying of weapons or of things capable of being used as weapons or of
fire-arms, ammunition or explosive substances. (s. 4(a)). It also gives
such an officer the power to destroy an arms dump or shelter, arrest
without warrant, search and seizure.
Section 5 requires the said officer to make over any arrested person
to the officer-in-charge of the nearest police station with the least
possible delay, together with a report of the circumstances occasioning
the arrest. These powers have been circumscribed by the Supreme
Court in the five-judge bench decision Naga Peoples Movement for
Human Rights vs. Union of India3 in order to bring them under the
Constitutional dispensation of Article 21.
The Armed Forces (Special Powers) Act, 1956 (AFSPA) has been
in operation for more than half a century in large areas of North
East India, and coinciding with the borders with Bhutan, China
and Burma. A similar law, the Armed Forces ( Jammu and Kashmir)
Special Powers Act, 1990, operates in the border areas with Pakistan
and Afghanistan in the North West.
Both these statutes have been fiercely criticised for the kind of
powers that are vested in the armed forces and paramilitary forces
purportedly to aid the civil power of the state administration, but
effectively supplanting it. Extensive powers to arrest, use force,
shoot, search and seizure, and so on, which are beyond the scope
of the Criminal Procedure Code, are invested in the armed forces
personnel.
The constitutional validity of AFSPA was challenged by the Naga

Peoples Movement for Human Rights (NPMHR) after documenting
numerous cases of horrific human rights violations by the Indian
Army against the Nagas. The Supreme Court of India, in a detailed
judgment delivered by a five judges bench4 upheld the constitutional
validity of the law to the great chagrin of the NPMHR and the
3
Naga Peoples Movement of Human Rights v. Union of India & Ors (1998) 2 SCC
109.
4
Ibid.
106 SAHR
numerous other civil rights organisations which had impleaded

themselves in its support. The Court laid down certain safeguards
which have to be followed by the armed forces in operations in these
areas, such as the presentation of an arrestee to the nearest police
station at the earliest, and definitely within 24 hours of arrest. The
Court also stated that the detailed dos and donts drawn up by the
Government of India Ministry of Defence must be adhered to.5
As a result, the armed forces and security forces in the North East
as well as in Jammu and Kashmir continue to operate within the
shield of protection of the AFSPA, with accountability being
reduced to a case-by-case examination by the judiciary, in those rare
cases where victims are able to approach the writ courts. It is well
known that approaching the writ courts, especially where the armed
forces are in virtual control, is not easy. These efforts, when made,
do not necessarily meet with a positive response. For instance, in
a case where the husband of the petitioner was brutally killed in
army custody, a writ petition filed before the Supreme Court was
dismissed on the ground that the guidelines under the AFSPA and
the NPMHR judgment cannot be mechanically applied. The Court
further observed that prompt action by the army in such matters is
the key to success.6 Decisions such as this have only added to the
perception, both within the armed forces as well as the people in
these areas, that the law provides the security forces with immunity
against prosecution, no matter how heinous the crime.
In Pakistan, the provisions relating to special dispensation in the

border areas with Afghanistan are found in the Constitution of
5
Ironically, these dos and donts are not readily available in the public domain, thus
holding the security personnel accountable for their violation becomes, at best,
difficult.
6
Masooda Parveen vs. Union of India (2007) 4 SCC 548
Pakistan itself. The Constitution of the Islamic Republic of Pakistan

under Article 8(3)(a) exempts laws relating to the armed forces from
the constitutional requirement of conformity with fundamental
rights. Article 199(3) of the Constitution, which provides the
jurisdiction of the constitutional courts, namely the High Courts,
and their power to issue various kinds of writs including the writ
of habeas corpus, specifically exempts the exercise of such power
in relation to a person who is a member of the Armed Forces of
Pakistan, or who is, for the time being subject to any law relating
to any of those Forces7 Again, Article 145(3) iterates that a High
7
Article 199 of the Constitution of Pakistan states:
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate
remedy is provided by law,
(a)on the application of any aggrieved party, make an order
(i) directing a person performing, within the territorial jurisdiction of the Court,
functions in connection with the affairs of the Federation, a Province or a local
authority, to refrain from doing anything he is not permitted by law to do, or to do
anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction
of the Court by a person performing functions in connection with the affairs of the
Federation, a Province or a local authority has been done or taken without lawful
authority and is of no legal effect; or
(b) on the application of anyperson, make an order
(i) directing that a person in custody within the territorial jurisdiction of the Court be
brought before it so that the Court may satisfy itself that he is not being held in custody
without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or
purporting to hold a public office to show under what authority of law he claims to hold
that office; or
(c) on the application of any aggrieved person, make an order giving such directions to
any person or authority, including any Government exercising any power or performing
anyfunction in, or in relation to, any territory within the jurisdiction of that Court as may
be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter
1 of Part II.
xxx
108 SAHR
Court shall not exercise any jurisdiction under Article 199 in relation
to any area in which the Armed Forces of Pakistan are, for the time
being, acting in aid of civil power in pursuance of Article 245. In
the case of a legal proceeding being initiated, it remains suspended
during the period the army is active in the area.
Most relevant for our purpose is Article 246, relating to special

dispensation in tribal areas, including the FATA and the Provincially
Administered Tribal Areas (PATA). These areas are contiguous
with the border of Pakistan with Afghanistan, which has been
experiencing considerable upheaval for the last several decades.
Mountainous and thus inaccessible, these areas have had the great
misfortune of being used by insurgent groups, such as the Taliban,
to escape the war against terror and re-group. As a result, these
areas have also seen massive army operations and violence from both
sides, with thousands of villagers fleeing to the relative safety of
refugee camps in Central Pakistan, becoming IDPs. Unfortunately,
these operations have witnessed numerous instances of human
rights violations, torture, enforced disappearance, and extra-judicial
killings at the hands of the armed forces.
Article 247(7) states that neither the Supreme Court nor any of
the High Courts shall have jurisdiction on any matter under the
Constitution with regard to the tribal areas. This exclusion of the
jurisdiction of the constitutional courts has resulted in rampant and
continuing violations of human rights. According to investigations
conducted by Amnesty International, human rights violations
are being committed against people in tribal areas of Northwest
3) An order shall not be made under clause (1) on application made by or in relation to a
person who is a member of the Armed Forces of Pakistan, or who is for the time being subject
to any law relating to any of those Forces, in respect of his terms and conditions of service, in
respect of any matter arising out of his service, or in respect of any action taken in relation
to him as a member of the Armed Forces of Pakistan or as a person subject to such law.
Pakistan both by the Pakistan government and the Taliban.8 The

constitutional exclusion of the courts from ruling on fundamental
rights violations in tribal areas, supplemented by statutory laws and
practices, enable the pervasive atmosphere of impunity enjoyed by
the armed security forces. This deprecation of the law is a key driver
of impunity for state and non-state perpetrators. The report states:
...rather than seeking to apply and strengthen the human

rights safeguards of Pakistans ordinary criminal justice system
in the Tribal Areas, the Pakistani authorities are applying old
and new security laws that authorize prolonged, arbitrary,
preventive detention by the Armed Forces, and breach
international human rights law. The Actions (in Aid of Civil
Power) Regulations 2011 (AACPR) in particular, along with
the century-old Frontier Crimes Regulation 1901 (FCR),
provide a framework for widespread human rights violations
to occur with impunity.9
The report further notes that no serving or retired member of

Pakistans Armed Forces, law enforcement authorities, or intelligence
services has been prosecuted for their alleged involvement in unlawful
detentions, torture and other ill-treatment, or the unlawful killing of
detainees in the Tribal Areas, including all the cases documented in
this report. The state has a poor record of bringing Taliban and other
perpetrators of abuses to justice in fair trials.10
8
As if Hell Fell on Me: The Human Rights Crisis in Northwest Pakistan. Amnesty
International. 10 June 2010. Index: ASA 33/004/2010. & Amnesty International.
The Hands of Cruelty: Abuses by Armed Forces and Taliban in Pakistans Tribal
Areas 13 December 2012. Index: ASA 33/019/2012.
9
Amnesty International The Hands of Cruelty: Abuses by Armed Forces and Taliban
in Pakistans Tribal Areas. 13 December 2012. Index:ASA 33/019/2012, at page 8.
10
Ibid. page 9
110 SAHR
Similar to Pakistan and India, statutory provisions in Bangladesh

grant special protections to the armed forces. These mainly pertain
to special powers to use force in abrogation of fundamental rights,
exemption from action for violation of fundamental rights, and
jurisdiction of army courts over civilian courts.
The Constitution of the Peoples Republic of Bangladeshcontains a

number of provisions creating a special dispensation with regard to
the armed forces and security forces. Article 45 of the Constitution
exempts disciplined forces, which includes, the army, navy, air
force, police, and any other force so declared, from the fundamental
rights chapter insofar as ensuring proper discharge of duties and
the maintenance of discipline is concerned.11 Article 46 permits
the Parliament to indemnify any person for any act done by him in
connection with the national liberation struggle or the maintenance or
restoration of order in any area of the country.12 On the positive side,
Article 47(3) provides that the fundamental rights chapter of the
Constitution shall not be a barrier to the detention, prosecution or
punishment of any person who is a member of any armed or defence
11
Article 45 of the Constitution of the Peoples Republic of Bangladesh states as under:
45. Modification of rights in respect of disciplinary law:- Nothing in this Part shall apply
to any provision of a disciplinary law relating to members of a disciplined force, being
a provision limited to the purpose of ensuring the proper discharge of their duties or the
maintenance of discipline in that force.
12
Article 46, Constitution of the Peoples Republic of Bangladesh states as under:
46. Power to provide indemnity:- Notwithstanding anything in the foregoing provisions
of this Part, Parliament may by law make provision for indemnifying any person in the
service of the Republic or any other person in respect of any act done by him in connection
with the national liberation struggle or the maintenance or restoration of order in any area
in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or
other act done in any such area.
or auxiliary force for the commission of genocide, crimes against

humanity or war crimes and other crimes under international law.13
Since the beginning of civil unrest in 1971, Sri Lanka has seen the
imposition of national security legislations, including emergency
provisions in the Constitution, at regular intervals. Even a cursory
examination of these provisions reveals cause for considerable
concern.
The Public Security Ordinance, 1947 (PSO), is a colonial legislation

which empowers the President to make such emergency regulations
as appear to him to be necessary or expedient in the interests of public
security and the preservation of public order and the suppression of mutiny,
riot or civil commotion, or for the maintenance of supplies and services
essential to the life of the community.14 This must be done through a
Proclamation published in the Gazette. The ordinance includes a list
of areas such a regulation could cover, including arrest and detention
of persons, search and seizure of property, and trial in special courts.
Noteworthy is Section 9 of the Ordinance which is alarming in its
overreach, as under:
13
Article 47, Constitution of the Peoples Republic of Bangladesh states as under:
47. Saving for certain laws
xxx
(3) Notwithstanding anything contained in this Constitution, no law nor any provision
thereof providing for detention, prosecution or punishment of any person, who is a member
of any armed or defence or auxiliary forces or any individual, group of individuals or
organization or who is a prisoner of war for genocide, crimes against humanity or war
crimes and other crimes under international law shall be deemed void or unlawful, or even
to have become void or unlawful, on the ground that such law or provision of any such law
is inconsistent with, or repugnant to, any of the provisions of the Constitution.
14
Section 5(1) of the Public Security Ordinance, 1947.
112 SAHR
9. Protection in respect of acts done in good faith under any

emergency regulation or any order or direction thereunder:- No
prosecution or other criminal proceeding against any person
for any act purporting to be done under any provision of any
emergency regulation or of any order or direction made or
given thereunder shall be instituted in any court except by, or
with the written sanction of, the Attorney-General; and no
suit, prosecution or other proceeding, civil or criminal, shall lie
against any person for any act in good faith done in pursuance
or supposed pursuance of any such provision.
Two kinds of exceptional provisions are made in this clause. First,

any person acting under an emergency regulation, or an order made
under such regulation, cannot be prosecuted in a criminal proceeding,
without the written sanction of the Attorney General. This provision
provides a partial protection from prosecution.
What is completely alarming is that the second part of the provision

prohibits any suit, prosecution or other proceeding, civil or criminal
against a person who was acting in good faith in pursuance or
supposed pursuance of the regulations. This clause provides blanket
immunity to all persons acting under such emergency regulation
from any kind of criminal or civil proceeding, as long as they are able
to demonstrate good faith.15
15
The regulations enacted under this Ordinance often echo this clause. For instance,
the Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist
Activities) Regulation, 2006 (no longer in force) declared that no action or suit shall
lie against any Public Servant or any other person specifically authorized by the
Government of Sri Lanka to take action in terms of these regulations, provided that
such person has acted in good faith and in the discharge of his official duties in clause
19.
The courts are also prohibited from entertaining any challenge to

any such emergency regulation, or any order, rule or direction made
under such regulation.16
Article 155 of the Constitution of the Democratic Socialist Republic

of Sri Lanka recognises the validity of the pre-constitutional PSO
and cements its status as law enacted by Parliament. It further
empowers the President17 to issue emergency regulations under the
PSO having the legal effect of over-riding, amending or suspending
the operation of the provisions of any law, except the provisions of
the Constitution.18 Such regulation comes into force only through
a Proclamation by Parliament, and detailed provision is made
regarding how this is to be done in an emergency situation.
The Prevention of Terrorism Act,1979 was enacted under questionable

circumstances, in less than 24 hours with insufficient time to debate,
and at a time where a large number of the members were boycotting
Parliament. It describes itself as (a)n Act to make temporary provision
for the prevention of acts of terrorism in Sri Lanka, the prevention of
unlawful activities of any individual, group of individuals, association,
organisation or body of persons within Sri Lanka or outside Sri Lanka
and for matters connected therewith or incidental thereto. Under this
16
Section 8 of the Public Security Ordinance, 1947 states as under:
8. Regulations, orders, &c, not to be called in question in any court: No emergency
regulation, and no order, rule or direction made or given thereunder shall be called in
question in any court.
17
It is clear that the Constitution concentrates a great degree of power in the President.
In turn, it is the President who makes key appointments, such as that of the Chief
Justice, and Attorney General, and so on. The President also enjoys immunity
from legal proceedings of any kind, including prosecution, under Article 35 of the
Constitution of the Democratic Socialist Republic of Sri Lanka.
18
Article 155(2) of the Constitution of the Democratic Socialist Republic of Sri
Lanka, under Chapter XVIII-Public Security.
114 SAHR
law, new offences in the nature of terrorism were defined, and in

addition, the state was given broad powers of arrest, search, seizure,
and preventive detention, even while the orders passed under the
statute by the relevant government authority were not to be called in
question in a court of law.
After the military operations against the Liberation Tigers of Tamil

Elam (LTTE) were concluded in 2009, these emergency provisions
continued to operate until they were lifted in 2011. However, the
end of the emergency did not end the militarys emergency policing
powers, and the government has continued to invoke Section 12 of
the PSO to allow the armed forces (army, air force and navy) to
retain policing powers, including search and arrest, particularly in the
North and the East. A new bill to extend some of these emergency
powers has also been proposed.
Investigations by civil rights and civil society organisations during

this period reveal rampant violations of human rights by the Sri
Lankan Army (SLA) and the Sri Lankan police forces, particularly
in the areas which were considered to be LTTE strongholds. A
report by Human Rights Watch in 201319 documents large number
of cases of rape of both men and women by SLA and police forces in
detention camps, and observes that such sexual violence was clearly
used as a tactic for intimidation and amounts to war crimes under
the Rome Statute. The report also refers to numerous instances of
torture, enforced disappearances, and other forms of human rights
19
Human Rights Watch. We Will Teach You a Lesson: Sexual Violence against
Tamils by Sri Lankan Security Force, https://www.hrw.org/report/2013/02/26/we-
will-teach-you-lesson/sexual-violence-against-tamils-sri-lankan-security-forces.
2013 Human Rights Watch. Recurring Nightmare State Responsibility for
Disappearances and Abductions in Sri Lanka, https://www.hrw.org/reports/2008/
srilanka0308/ . 2013
abuse, although this was not the primary focus of the study. It
observes:
Since the end of the armed conflict in 2009, the continued large-
scale deployment of the armed forces in former LTTE areas of
Northern Sri Lanka, coupled with increased surveillance of
civil society groups, has stymied community responses to rights
abused including sexual violence.20
The report finds an alarming trend where, even in the rare situations
where criminal cases are initiated against the security forces, these
are not treated with due seriousness by the criminal justice system.
The report observes:
As a general rule, cases of sexual violence and rape by the

security forces have been poorly investigated or not pursued at
all. Complaints of rape, like other complaints of torture, are often
not effectively dealt with by the police, magistrates, or doctors.
Weaknesses in the early stages of the criminal investigation
process have repeatedly contributed to the ultimate collapse
of investigations of alleged rapes and other acts of sexual
violence.21
The Army Act, 2006 of Nepal provides significant and far-reaching

immunities from prosecution against acts done in discharge of duty,
not only to members of the army but also to other persons who are
assisting the army in its work or in a military operation zone, which
would include paramilitary and central security forces.22
20
Human Rights Watch. op cit 227, Page 14-15.
21
Op cit 227 at page 27.
22
Section 3(1)(b) of the Army Act, 2006 of Nepal.
116 SAHR
The Act, vide Section 2223 further provides an overarching immunity

from prosecution to such armed forces persons where death or
loss occurs as result of their actions, upon the condition that they
committed such actions in the course of discharging his/her duties in
good faith. However, offences relating to corruption, theft, torture
and disappearance24 and the offences of rape and homicide25 are
excluded from such immunity from prosecution.
The International Commission of Jurists (ICJ) had severely criticized

the Army Act when it was at a draft stage, particularly Section
2226 above. However, the statute was enacted without making the
recommended changes.
23
Section 22 of the Army Act, 2006 of Nepal, under the Chapter Privileges and
Immunities states as under:
22. Protecting the acts performed during the discharge of duties: If, someone suffers
death or loss while a person under the jurisdiction of this Act is committing an act in the
course of discharging his/her duties in good faith, no case shall be filed against such person in
any court.
Provided that, any of the offences as referred to in Sections 62 and 66 shall not be deemed
to be an offence committed in the course of discharging duties in food faith.
Explanation: For the purposes of this Section, committing any act, in the course of
discharging duties, means an act committed during the performance of duties and it includes
any action taken for internal security or self-defence, including flag march, patrolling and
sentry (Chapate) duty.
24
See Section 62 of the Army Act, 2006 of Nepal.
25
See Section 66 of the Army Act, 2006 of Nepal.
26
International Commission of Jurists. Nepal: Recommendations For Amendments
To The Draft Army Act, https://www.icj.org/nepal-recommendations-for-
amendments-to-the-draft-army-act/ . September 2006
Prior Sanction For Prosecution

In India, a plethora of statutory provisions grant protection to the
armed forces and the security forces from criminal prosecution
without the prior sanction of the Central government. In this section
we demonstrate how, in fact, these provisions operate as virtual
immunity from prosecution, with the result that there is a pervasive
impunity in the armed forces interaction with civilian populations.
Section 627 of the AFSPA, which applies to all armed forces

personnel deployed in disturbed areas to which the AFSPA has
been made applicable, protects such persons as follows:
6. Protection to persons acting under Act No prosecution,

suit or other legal proceeding shall be instituted, except with
the previous sanction of the Central Government, against any
person in respect of anything done or purported to be done in
exercise of the powers conferred by this Act.
Other than the AFSPA, which is a special law applicable only to

disturbed areas, the Code of Criminal Procedure (CrPC) also
provides a general power to call upon the armed forces to assist the
civil power to disperse unlawful assembly where public security
is manifestly endangered by any such assembly.28 Section 132 of
the CrPC provides for protection of such armed forces personnel
against criminal prosecution for such acts, in that prior sanction of
the Central Government is required. It is further provided that acts
27
It may be noted that the provisions of the Armed Forces ( Jammu & Kashmir) Special
Power Act, 1990 are almost exactly the same as the 1958 Central legislation, and
therefore a separate examination of the said statute is not being made. The analysis
and comments regarding the 1958 Act apply mutatis mutandis to the 1990 Act.
28
Sections 129 to 131 Code of Criminal Procedure, 1973 (India).
118 SAHR
done in good faith in this regard by the armed forces shall not be
considered an offence.29
Section 197 of the CrPC states that no Court can take cognizance
of an offence purported to be committed by a public servant (which
includes the armed forces) while acting in the discharge of his official
duty, except with previous sanction of the central government. This
provision has been specifically extended to the armed forces.30
It is well known that the Central Government rarely sanctions the

prosecution of armed forces personnel in ordinary criminal courts.
In a submission made to the Verma Committee in January 2013,
Ms. Vrinda Grover, Advocate, stated:
The information received from the Ministry of Defence,

Government of India states, (1) 44 applications were received
by the Ministry of Defence for grant of sanction for prosecution
of members of the Indian Army, posted in Jammu and Kashmir
between 1989-2011. (2) 33 requests for grant of sanctions
for prosecution of Indian Army personnel were rejected (3) 11
requests for grant of sanction of prosecution of Indian Army
personnel are still pending determination (4) NIL requests for
grant of sanction of prosecution of Indian Army personnel have
been granted. (Reply of the Ministry of Defence is enclosed
as Annexure 4). These figures lay bare the truth that the
29
Section 132(2) of the Code of Criminal Procedure, 1973 (India) states:
(2) (a) No Executive Magistrate or police officer acting under any of the said sections in
good faith; (b) no person doing any act in good faith in compliance with a requisition under
section 129 or section 130; (c) no officer of the armed forces acting under section 131 in good
faith; (d) no member of the armed forces doing any act in obedience to any order which he
was bound to obey, shall be deemed to have thereby, committed an offence
30
Section 197(2) of the Code of Criminal Procedure, 1973 (India).
Government has refused to grant sanction for the prosecution

of any member of the armed forces or the Central Armed Police
Forces, for prosecution before the regular criminal court.31
These statutory provisions have not been enacted to provide blanket

immunity from prosecution to security forces. Section 6 of AFSPA
clearly applies only in respect of anything done or purported to be
done in exercise of the powers conferred by (AFSPA), the plain
meaning being that its operation is restricted to actions of the armed
forces which are in furtherance of its purpose of assisting the civil
power. The provisions of the CrPC also, quite clearly, cannot be
interpreted to confer immunity from prosecution, and indeed are only
meant to provide a layer of protection from malicious prosecutions at
best. However, in practice, these statutory provisions are extended to
all actions of armed forces personnel, within or outside the mandate
of the law, and by refusing to sanction prosecutions in a majority of
cases, the perception that the armed forces are immune from criminal
prosecution for human rights violations has gained strength.
The CrPC of Pakistan also provides for the use of armed forces
for the dispersal of unlawful assembly, at the request of the civil
administration. The Code further provides that the Federal
government or the Provincial government may request the assistance
of the armed forces for the public security, protection of life and
property, public peace and the maintenance of law and order.32
31
Submission by Ms. Vrinda Grover Advocate to Justice Verma Committee. Retrieved
from: http://feministsindia.com/women-and-law/justice-verma-submissions/
vrinda-grover/
32
Section 131-A, Code of Criminal Procedure, Pakistan is as follows:
Power to use military force for public security and maintenance of law and order. (1) If
the Provincial Government is satisfied that, for the public security, protection of life and
property, public peace and the maintenance of law and order, it is necessary to secure the
assistance of the armed forces, the Provincial Government may require, with the prior
120 SAHR
The Code states that no such person shall be prosecuted in any

criminal court for an act which is purported to be done under these
provisions, except with the sanction of the Provincial government. In
any case, it is provided that where an inferior officer, or soldier, sailor
or airman in the armed forces does any act pursuant to such request,
and in obedience of an order which he was bound to obey, no such
act shall be deemed to be an offence.33 The Code further requires
that where any public servant (which would include armed forces
personnel) is accused of an offence committed by him while acting
or purporting to act in the discharge of his official duty, no court
can take cognizance of the offence except with the previous sanction
approval of the Federal Government, or the Federal Government, on the request of the
Provincial Government, direct, any officer of the armed forces to render such assistance with
the help of the armed forces under his command, and such assistance shall include the exercise
of powers specified in sections 46 to 49, 53. 54, 55(a) and (c), 58, 63 to 67,100,102,103
and 156: Provided that such powers shall not include the powers of a Magistrate. (2)
Every such officer shall obey such requisition or direction, as the case may be, and in doing so
may use such force as the circumstances may require. (3) In rendering assistance relating to
exercise of powers specified in subsection (1), every officer shall, as far as may be, follow the
restrictions and conditions laid down in the Code..
33
Section 132 of the Code of Criminal Procedure, Pakistan is as follows:
132. Protection against prosecution for acts done under this Chapter. No prosecution
against any person for any act purporting to be done under this Chapter shall be instituted
in any Criminal Court, except with the sanction of the Provincial Government; and: (a)
no Magistrate or police officer acting under this Chapter in good faith. (b) no officer acting
under section 131 in good faith. (c) no person doing any act in good faith, in compliance
with a requisition under section 128 or section 130 [or S.131-A], and (d) no inferior
officer, or soldier, sailor or airman in the armed forces ..... doing any act in obedience to any
order which he was bound to obey. shall be deemed to have thereby committed an offence:
Provided that no such prosecution shall be instituted in any Criminal Court against any
officer or soldier, sailor or airman in the armed forces except with the sanction of the Central
Government. Scope-Section 132, Criminal P.C. is a protection against prosecution and has
nothing to do with ingredients of any offence. In order to obtain benefit of S. 132 the accused
has to prove that the acts complained of were done under circumstances mentioned in the
section, He need not prove that he committed no offence. In other words he must place before
the Judge materials and circumstances justifying an inference that there was an unlawful
assembly and the acts complained of were purported to have been done while dispersing that
assembly.
of the central government or the President. While granting such

sanction, the central government or President can also specify the
Court before which such trial shall be held.34
In Bangladesh, the Armed Forces (Special Powers) Ordinance

similarly gives special powers to the armed forces in a situation of
emergency, including the power to arrest, enter, search and seize
property, and use necessary force. A brief legislation, it dedicates one
provision to stating that no prosecution, suit of other legal proceeding
for acts done under this Ordinance, can be instituted except with
the previous sanction of the Government.35 This protection has been
further extended to officers and members of any police force or portion
of a police force as notified by the Government.36
34
Section 197(2) of the Code of Criminal Procedure, Pakistan states as follows:
(2) Power of President or Governor as to prosecution. The President or Governor, as the
case may be, may determine the person by whom, the manner in which, the offences for
which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and
may specify the Court before which the trial is to be held.
35
Section 4, Armed Forces (Special Powers) Ordinance, 1942 states as under:
4. Protection to persons acting under this Ordinance - No prosecution, suit or other legal
proceedings for any order purporting to be made under this Ordinance or for any act
purporting to be done in obedience to any such order shall be instituted in any Court except
with the previous sanction of the Government, and notwithstanding anything contained
in any other law for the time being in force, no person purporting in good faith to make such
an order or to do any act in obedience thereto shall, whatever consequences ensue, be liable
therefore.
36
Section 2, Armed Forces (Special Powers) Extension Ordinance, 1942 states as
under:
2. Power to extend Ordinance XLI of 1942, to police forces:- TheGovernment may, by
notification in the official Gazette, direct that the provisions of section 2 and section 4 of the
Armed Forces (Special Powers) Ordinance, 1942, shall apply to the officers and members of
any police force or any portion of a police force specified in the notification, when employed
on any duty specified in the notification, as they apply to officers and members of the military
forces of Bangladesh; and on such direction being made the powers exercisable by an officer
not below the rank of Captain in the military forces of Bangladesh shall be exercisable by
any officer of a police force so specified who holds a gazetted appointment in such force.
122 SAHR
Chapter IX of the CrPC, 189837 of Bangladesh provides for the

army to be called in order to assist the civil authorities to disperse
unlawful assemblies. This chapter also specifically exempts any
armed forces personnel or soldier from criminal liability for any act
taken by him in pursuance of an order under this chapter, and in
any case requires that no such prosecution shall be instituted in any
Criminal Court against any officer or soldier in the Bangladesh Army
except with the sanction of the Government.38 In addition, Section
197 of the code is a general provision requiring that where any public
servant is accused of any offence alleged to have been committed by him
while acting or purporting to act in the discharge of his official duty, the
previous sanction of the government is required before a Court can
take cognizance of it.39 As with similar statutes in other countries in
37
See Sections 129, 131, 132 of Chapter IX [unlawful assemblies], and Section 197 of
Chapter XV [of the jurisdiction of the criminal courts in inquiries and trials].
38
Section 132 of the Criminal Procedure Code, 1898 states as under:
No prosecution against any person for any act purporting to be done under this Chapter
shall be instituted in any Criminal Court, except with the sanction of the Government;
and-
(a) no Magistrate or police-officer acting under this Chapter in good faith,
(b) no officer acting under section 131 in good faith,
(c) no person doing any act in good faith, in compliance with a requisition under section
128 or section 130, and
(d) no inferior officer, or soldier, or volunteer, doing any act in obedience to any order which
he was bound to obey, shall be deemed to have thereby committed an offence: Provided that
no such prosecution shall be instituted in any Criminal Court against any officer or soldier
in the Bangladesh Army except with the sanction of the Government.
39
Section 197 of the Code of Criminal Procedure states as under:
(1) When any person who is a Judge within the meaning of section 19 of thePenal Code,
or when any Magistrate, or when any public servant who is not removable from his office
save by or with the sanction of the Government, is accused of any offence alleged to have
been committed by him while acting or purporting to act in the discharge of his official
duty, no Court shall take cognizance of such offence except with theprevious sanction of the
Government.
the region, the phrase in discharge of his official duty is interpreted

widely when it comes to security forces, especially those deployed in
the border areas.
In Sri Lanka, Article 15 of the Emergency (Prevention and

Prohibition of Terrorism and Specified Terrorist Activities)
Regulation No. 7 of 2006 provides immunity from prosecution
for government officials who commit wrongful acts when they
implement the regulations. Legal proceedings are prohibited if an
official acted in good faith and in the discharge of his official duties.
A similar provision is found in the PTA in Article 26. As in the
case of India, Pakistan, and Nepal, prosecutors and courts are likely
to interpret this language broadly in order to provide the widest
possible protection to armed forces personnel from prosecutions.
Certain provisions of the Sri Lankan Criminal Procedure Code also

provide immunity from prosecution to armed forces and police forces.
To initiate prosecution for any act done in aid of civilian authorities
to disperse unlawful assemblies,40 or for any offences by or relating
to a public servant,41 the previous sanction of the Attorney General
is a prerequisite.42 Until such sanction is obtained, the proceeding
remains in abeyance.43
There is no requirement for sanction for prosecution of armed forces

personnel in the Nepal Army Act of 2006. However, this must be
viewed in light of the fact that there is a sweeping immunity from
prosecution in the first place.
40
Section 97 of the Code of Criminal Procedure Act (No. 15 of 1979) of Sri Lanka.
41
This includes Sections 158, 159, 160, 161, 210, 211 and 212 of the Penal Code.
42
Section 135(1)(b) of the Code of Criminal Procedure Act 1979.
43
See, for instance, Section 170 of the Code of Criminal Procedure Act 1979.
124 SAHR
Prosecution in Military/Security Courts

In addition to the above statutory protections, the special laws
relating to the various armed forces contain specific provisions
which mandate the prosecution of armed forces personnel in special
military courts or security forces courts in a large majority of cases.
The law in India relies upon provisions of the Army Act, 1950
(Sections 70, 125 and 126), Border Security Force Act, 1968, the
Central Reserve Police Act, 1949, the Sashastra Seema Bal Act, 2007,
and other such legislations relating to the armed forces and central
paramilitary forces, which require that armed forces personnel be
tried in special military courts.
In 2012, the Supreme Court decided in favour of the armed

forces in the Pathribal judgment,44 finding that the option of the
Commanding Officer (CO) whether the accused personnel be tried
in a military court or an ordinary criminal court remains intact, even
though such option was not exercised by him for almost a decade,
bringing the prosecution to a complete standstill. In this case, despite
an investigation by the Central Bureau of Investigation finding that
the security forces had, in fact, killed civilians, the Supreme Court
allowed the CO to exercise the option to prosecute the case in the
military courts, where the accused were subsequently acquitted for
want of evidence.45
This decision demonstrates the failure of the writ courts to

comprehend the enormous power and control exercised by the
armed forces in these border areas, thus reinforcing the atmosphere
44
General Officer Commanding Rashtriya Rifles vs. Central Bureau of Investigation &
Anr. [2012] 6 SCC 228
45
Reopen the Pathribal case. The Hindu. January 27, 2014.
of impunity which shields the armed forces from accountability for

heinous crimes committed in the interests of national security. By
acceding to the argument that proceedings against the forces will
demoralise them,46 and that the actions of the armed forces were
done in good faith and in the interest of the nation, the courts
have denied justice to civilians who have been at the receiving end
of military wrath.
The approach of the courts in this regard is unfortunate, particularly

since there is a high incidence of extrajudicial executions (often
disguised as encounters) by armed and paramilitary forces in these
disturbed areas along the borders. Bringing the security personnel
to trial in such cases is difficult to begin with; where there is an
insistence that such prosecutions be conducted in military courts or
special security courts, the purpose is completely defeated.
In a writ petition filed by the Extra Judicial Execution Victim

Families Association (EEVFAM)47 before the Supreme Court
of India, it was pointed out that over the years a large number of
people have been killed by the security forces while in custody or in
extrajudicial executions disguised as staged encounters. The number
of people killed in the state of Manipur alone during the period May
1979 to May 2012 was 1,528. The government argued that these
deaths occurred within the lawful exercise of power by the security
personnel and were justified by Manipurs status as a sensitive border
area with a long-standing problem of armed insurgency. In 2013, the
Supreme Court appointed a Special Investigation Team (SIT) to
46
See, for instance, Supreme Court of Indias observations in Masooda Parveen vs.
Union of India (2007) 4 SCC 548.
47
Extra Judicial Execution Victim Families Association (EEVFAM) and Anr. vs. Union of
India & Ors. (2013) 2 SCC 493.
126 SAHR
investigate six cases of encounter deaths from this list.48 The report
of the SIT revealed that in the last 66 years, only three cases of
complaints against central security forces have been investigated,
and even in those the details of action taken remained unknown.49
In Pakistan, the Pakistan Army Act, 1952 provides for the

prosecution of offences by personnel in the armed forces by martial
courts, and their detention during trial in military custody. Thus,
where a civilian offence is committed by such personnel, and both
the ordinary criminal court and the martial court have jurisdiction, it
shall be the discretion of the prescribed officer to decide before which Court
the proceedings shall be instituted.50 During this period, such accused
shall be detained in military custody. Since there is no protection
against double jeopardy in the Code, the law provides that such
person may subsequently be also tried in an ordinary criminal court
for the same offence, in which case the sentence of the martial court
shall be taken into consideration.51
Bangladesh also has special laws which govern the armed forces
and which specifically provide that prosecutions for offences
committed by personnel of such armed forces will be conducted in
special martial courts. The Army Act of 1952 therefore provides that
members of the armed forces are to be tried by martial courts in the
general course, except where the crime of murder, culpable homicide
not amounting to murder, or rape, is committed against a civilian. In
such cases also, the martial courts will have jurisdiction where such
offence is committed:
48
Ibid, Court order dated 4th January, 2013.
49
PUDR. Impunity to the Armed Forces in Armed Conflict Areas: A Concept note.
July 11, 2014.
50
Section 94 of the Pakistan Army Act, 1952.
51
Section 96 of the Pakistan Army Act, 1952.
a) while on active service, or

b) at any place outside Bangladesh, or
c) at a frontier post specified by the Government by notification
in this behalf.52
Needless to say, it is difficult to comprehend how an offence of rape

could be committed while on active service, but such is the letter
of the law. Where the martial court as well as the ordinary criminal
court both have jurisdiction, the civilian authorities will hand over
custody of the accused to the martial court,53 and it shall be the
discretion of the prescribed military officer to decide in which court
such crimes shall be tried.54 Even where the ordinary criminal court
is of the view that it is the proper court to try such an offence, it must
give the prescribed military officer a notice in writing to exercise his
option either to deliver over the offender to the nearest magistrate to be
proceeded against according to law, or to postpone proceedings pending a
reference to the Government.55 A decision of the martial court cannot
be appealed against in any court of law.56 The application of the
Army Act, 1952 in its entirety has been extended to the Bangladesh
Territorial Army57 and the Bangladesh National Guard.58
The Border Guard Bangladesh (BGB - formerly known as

Bangladesh Rifles) is the main paramilitary force in charge of
52
Section 59(2) of the Army Act, 1952 of Bangladesh.
53
Section 76 of the Army Act, 1952.
54
55
56
57
Section 13 of the Bangladesh Territorial Force Act, 1950.
58
Section 12 of the National Guard Act, 1950.
128 SAHR
protecting the borders of the country.59 While during peace-time

the BGB is governed by its own statute, during times of war it comes
under the control of the Ministry of Defence as an auxiliary force to
theBangladesh Army.
In Sri Lanka, the CrPC Act of 1979 places an obligation upon a

civilian court to hand over a person who is to be tried by a military
court to the concerned CO of the ship, regiment, corps or detachment
to which he belongs, or the nearest such officer, as the case may be.60
The statutory and constitutional provisions giving special protections

to security forces in Sri Lanka have had a chilling effect upon civil
society organisations and victims taking the necessary steps to
prosecute security personnel who have committed an array of human
rights abuses. As a Human Rights Watch report61 observes:
During the armed conflict, the police force in Sri Lanka became
significantly militarized and emergency provisions conferred
police powers on the army, thus blurring the distinction between
the two forces. This overlap, which has continued up to the
present, has made it more difficult for people to file complaints
or seek redress, particularly against the military.62
The Army Act, 2006 of Nepal establishes special military courts for
the prosecution of armed forces and paramilitary personnel insofar
59
An analysis of the Border Guard Bangladesh Act, 2010 could not be done for the
purpose of this study as the same is available only in Bengali.
60
Section 445, Code of Criminal Procedure Act, No.15 1979 (Delivery to military
authorities of persons capable of being tried by court-martial).
61
Human Rights Watch. We Will Teach You a Lesson: Sexual Violence against Tamils
by Sri Lankan Security Force. 2013
62
Ibid at page 50.
as these relate to offences defined under this statute. However, the

Act states that any offence of rape or homicide, unless committed
against another armed forces personnel, is to be tried in an ordinary
criminal court.63 Also, where an armed forces personnel commits an
offence over which the civilian courts have jurisdiction, then such
offence can be prosecuted in an ordinary criminal court. There is a
further provision that nothing in this Section shall be a bar to form a
court of inquiry and conduct an investigation and take necessary action
on the offence that falls under this Act even if the prosecution is being
conducted by an ordinary court.
It further provides that where such personnel commits the offence

of corruption, theft, torture and disappearance, an investigation and
63
Section 66 of the Army Act, 2006 of Nepal states as under:
66. Offences under other Laws: (1) In a case a person under the jurisdiction of this Act
commits any offence as referred to in Sections 38 to 65 and except in a that condition such
an offence is committed by any military personnel against any other military personnel,
if the person under the purview of this Act commits any of the following offences such a
lawsuit shall fall under the jurisdiction of other courts:
(a) Homicide,
(b) Rape.
(2) If the agency or investigating officer conducting an investigation and inquiry issues an
order to handover the accused (alleged person) involved in the offence as referred to in Sub-
section (1), the commanding officer or Commander (Pati) or concerned officer shall hand
him/her to the agency or officer issuing such order. The retirement or desertion of a person
shall not bar to conduct an investigation and take action in accordance with law.
(3) The person who comes under the jurisdiction of this Act is being investigated fallings
under the jurisdiction of other court shall ipso facto be suspended during the period of his/
her custody and until the final decision if a case so lodged.
(4) Even if an investigation into an offence under the jurisdiction of other courts is started
in respect to a person under the jurisdiction of this Act, nothing in this Section shall be a bar
to form a court of inquiry and conduct an investigation and take necessary action on the
offence that falls under this Act.
130 SAHR
inquiry will be conducted by a specially constituted committee

comprising of the following members:64
(a) Deputy Attorney General as designated by the
Government of Nepal Chairperson;
(b) Chief of legal section of the Ministry of Defence
Member;
(c) Representative of Judge Advocate General Department
not below the rank of Major (Senani) Member.
Therefore, while the ordinary courts jurisdiction is not completely

subordinated to the military courts as in other countries, there is
a high degree of control maintained by the armed forces on how
and where their personnel will be held accountable for any offences
committed by them.
There is material to demonstrate that in Nepal there have been cases

where despite judicial intervention and executive compliance, the
army has successfully shielded its personnel from prosecution in
ordinary criminal courts for human rights violations, even heinous
crimes such as rape and extra-judicial killings. The Maina Sunuwar
case is just such an example. In this case, a 15 year old girl was
electrocuted to death by personnel of the Nepal army, but they
escaped any strict punishment.65 Data also shows the number of
cases of abuse by men in uniform has been constantly on the rise.66
64
Section 62 of the Army Act, 2006 of Nepal
65
Ramakrishnan, Nitya. In Custody: Law, Impunity and Prisoner Abuse in South
Asia. South Asians for Human Rights and Sage Publication. 2013. pages 311-314.
66
Ibid. page 330.
Although laws that govern the Royal Bhutan Army were not readily
available to this writer, secondary materials have documented67
instances of human rights violations by the Bhutanese forces,
including harassment, assault, torture and rape of the ethnic Nepalese
who were forced out of Bhutan by the armed forces.
Box 2: Preventive Detention Laws

Although very rarely are the armed forces vested with the power of
preventive detention, the vesting of vast powers even with the police forces
can have important consequences on the atmosphere of impunity which
prevails in a border area. A brief examination of the Jammu & Kashmir
Public Safety Act, 1978 (PSA) demonstrates how such a law can cast a
cloud upon the civil society and general public, with regard to its ability
to negotiate with the state in general, and demand accountability of the
armed forces in particular.
The PSA is one among the many laws in J&K which provides for
preventive detention without a trial for upto two years in case of threat
to the security of the State. The PSA empowers the State government to
detain any person it perceives to be a threat to the security of the State or to
the maintenance of public order . The government has similar powers with
respect to those who are foreigners within the meaning of the Foreigners
Act, 1946 and with respect to any person residing in areas of the State
under occupation of Pakistan.
A variety of protections against misuse are provided under the law. For
instance, an order of preventive detention needs to be approved by the
Central Government within 12 days of it being passed, otherwise it will
lapse. contd
67
See, for instance, Amnesty International. BHUTAN: Human Rights Violations
against the Nepali-speaking population in the South. December 1999; AI Index:
ASA 14/04/92; Human Rights Watch. Trapped by Inequality, Bhutanese Refugee
Women in Nepal. 2007.
132 SAHR
For its part, the Central government refers the matter to an Advisory
board for examination within 4 weeks, whose decision is binding upon
the government. However, it is also provided that a detention order will
not fail only on the technicalities.68
The PSA has been relied upon heavily over the last several decades
for the suppression of public opinion and opposition to the state in
Kashmir.69 In a written reply provided by the Chief Minister of the
State to a query raised in the Legislative Council, it was stated that
during last six years 1,309 persons were detained under PSA out of
which detention of 852 persons was quashed. As on March 20, 2015
only 73 persons are detained under PSA out of whom 17 are Indians and
20 are foreigners, he said.70 Another estimate claims that (m)ore than
27,000 people have been arrested and jailed by different governments
on different occasions in Jammu and Kashmir under this law since
its promulgation in 1978.71 However, these estimates are contested
in a report of Amnesty International, which claims that the number
detained under the PSA over the past two decades (1991-2011) range
from 8,000-20,000.72 The extensive use of the PSA to arrest protestors
and organizers of protests has had a chilling effect upon the ability of the
public to protest against violations of human rights committed by the
armed forces and paramilitary forces in the State.
68
Section 10A and 11 of the PSA.
69
International Peoples Tribunal on Human Rights and Justice in Indian-
Administered Kashmir[IPTK]. Alleged Perpetrators Stories of Impunity
in Jammu & Kashmir. December 2012.
70
Press Trust of India. Jammu. 1,309 persons detained under PSA in last 6 years:
J-K Govt. Published in Business Standard on 24 March 2015. Retrieved
from: http://www.business-standard.com/article/pti-stories/1-309-persons-
detained-under-psa-in-last-6-years-j-k-govt-115032400596_1.html
71
India Opines. Public Safety Act is a Draconian Law in Jammu and Kashmir.
Retrieved from: http://indiaopines.com/public-safety-act-is-a-draconian-
law-in-jammu-and-kashmir/
72
Amnesty International. A lawless law: Detentions under the Jammu and
Kashmir Public Safety Act . 21 March 2011. AI Index: ASA 20/001/2011.
The above analysis reveals a complex web of legal protections which

prevent security forces from being held accountable for wrongs
committed against civilians. When such violations occur in border
areas, overarching anxieties about sovereignty and border protection
naturally come into play, making the general impunity of security
forces even more pronounced.
134 SAHR
vi
Mechanisms for Protection of

Human Rights at the International and
Regional Level
It is clear from the preceding chapters that national level institutions,
such as judicial and administrative remedies, are inadequate when
addressing human rights violations at the borders. Not only do
such violations often involve persons from across borders, in many
situations the borders themselves are disputed. The fundamental
question of jurisdiction and locus standi, therefore, becomes a
preliminary barrier to the adjudication of such cases, or even their
redressal. Clearly, there is a need for an institutional arrangement
and/or authority which can transcend such jurisdictional barriers.
Yet it is clear that serious human rights violations are taking place in
border areas in the South Asian region, and that the security forces
and other non-state actors responsible for such violations have not
been brought to account. Consequently, there is an overarching
atmosphere of impunity which feeds upon itself and continues
to grow. Clearly, there is an urgent need to hold the violators
accountable. This is not happening. The UNHCR, which is the only
UN body that has any role to play, has also found its operations
seriously restricted both in terms of access as well as the nature of
remedy it is permitted to provide.
In the present chapter we examine the different institutional

arrangements available at the international and regional level,
through the lens of protection, promotion and advancement of
human rights in the border areas. We begin with an examination
of the National Human Rights Institutions (NHRIs) which are
mandated and monitored by the Office of the High Commissioner
for Human Rights (OHCHR) of the UN. This is followed by an
examination of the international mechanisms. Some of the good
practices which are available both within and outside the region
have also been examined, such as the Inter American Court in the
Americas, and the ASEAN initiative in South East Asia.1 Through
this examination, the potential for advancement of similar initiatives
within the SAARC mandate have been explored.
National Human Rights Institutions
The Principles relating to the Status of National Institutions,2 also

known as the Paris Principles, were approved by the UN General
Assembly in 1993. The Paris Principles are minimum conditions
that must be met for a NHRI to be considered credible by its peer
institutions and within the UN system. Under the Paris Principles,
NHRIs are required to:
Protect human rights, including by receiving,

investigating and resolving complaints, mediating conflicts
and monitoring activities; and
1
See for this purpose Annexures A and B.
2
Principles relating to the Status of National Institutions, General Assembly
Resolution 48/134, 20 December 1993. http://www.unhchr.ch/html/menu6/2/fs19.
htm#annex
136 SAHR
Promote human rights, through education, outreach,

media, publications, training and capacity building
activities, as well as by advising and assisting governments.
The OHCHR has established a mechanism for accreditation of

NHRIs on the basis of their conformity to the basic standards the
Paris Principles, as under:
a clearly defined and broad-based mandate based on
universal human rights standards
autonomy from the government
independence guaranteed by legislation or the constitution
pluralism, including membership that broadly reflects their
society
adequate resources
adequate powers of investigation.3
The Bureau of the International Coordinating Committee of
National Institutions (ICC) accredits institutions based on their
compliance with the Paris Principles as being A-Status, B-Status,
or C-Status. An A-Status accreditation signifies compliance
with the Paris Principles and means that the NHRI is considered
credible by the ICC and the international community. B-Status
accreditation signifies that the NHRI meets some but not all the
requirements of the Paris Principles. C-Status accreditation
signifies that the NHRI is non-compliant. Only A-Status NHRIs
have the right to participate as voting members within the ICC and
to take part in the work of the UN Human Rights Council (HRC).
3
Paris Principles, https://www.unicef.org/emerg/files/ParisPrinciples310107English.
pdf
The NHRIs, as autonomous bodies, are meant to act as a bridge

between the state and the UN treaty bodies and committees, and are
therefore encouraged to collaborate with governments in providing
reports to the UN treaty bodies, and also advise and facilitate their
governments in acting in accordance with the recommendations
of the treaty bodies. Naturally, concerns arise over how far the
governments concerned are able to exercise control, explicitly or
implicitly, over these institutions. The tendency of the NHRIs to
provide reports which are in conformity to government positions,
rather than independent accounts, is therefore a matter of concern.4
As part of the OHCHR led initiative to establish NHRIs, the

countries in the SAARC region have also established institutions
at the national level to meet the mandate of the Paris Principles.
In the present chapter we briefly examine the effectiveness of these
institutions and the potential for addressing human rights violations
in the border areas.
The NHRIs in the SAARC countries under study have no

standardized model and have been categorized as follows depending
on their structure:
1. National Human Rights Committees
2. Human Rights Ombudsman Institutions
3. Hybrid Institutions
4. Consultative and Advisory Bodies
4
United Nations Development Programme. UNDP-OHCHR Toolkit or
collaboration with National Human Rights Institutions December 2010.
138 SAHR
Institutes and Centres.
The inter-relationship of the NHRI with the government is

graphically represented below:
Figure 2. NHRIS: Central Elements of

National Protection Systems
Recommend... Amicus Curiae

Government Judiciary
Monitor Referral
NHRIs
Report... Cooperation
Parliment Civil Society
Advise Consultation
Saurce: National Institutions and Regional Mechanisams Section of the OHCHR
The OHCHR plays a significant role in the functioning and support

of the NHRIs, which includes the following initiatives:5
Country engagement: supports States to establish or
strengthen NHRIs in accordance with the Paris Principles.
5
United Nations. National Human Rights Institutions: History, Principles, Roles
and Responsibilities. New York and Geneva, 2010. Professional Training Series
No.4(Rev. 1), http://www.ohchr.org/Documents/Publications/PTS-4Rev1-NHRI_
en.pdf .
Leadership: strengthens NHRI capacity to work effectively

and independently.
Interaction with the UN human rights system: Supports

an effective interaction between NHRIs and Treaty
Bodies, and mechanisms such as Special Procedures and
the Universal Periodic Review (UPR).
Partnership within the UN system: mainstreaming of the

work of NHRIs throughout the UN system.
The NHRIs which are able to satisfy the minimum standards set
by the Paris Principles, and receive accreditation by the ICC, are
permitted to partake in the HRCs work.
In the South Asian region, the NHRIs of the States of Afghanistan,

India and Nepal have attained the status of full members of the
ICC of National Institutions for the Promotion and Protection of
Human Rights (holding A Status Accreditation), while Bangladesh,
Maldives and Sri Lanka continue to be Associate Members. The
Associate Members or members with B Status accreditation can
become eligible for full membership if they demonstrate compliance
to the Paris Principles. Pakistan has a newly established National
Commission for Human Rights while Bhutan has no NHRI.
140 SAHR
Full members having A status
The Bonn Agreement6 of June 2002 led to the establishment

of the Afghanistan Independent Human Rights Commission
(AIHRC) on the basis of the decree of the Chairman of the Interim
Administration. In terms of Article 58 of the Constitution, the
AIHRC is premised as a constitutionalized, national and independent
human rights body in Afghanistan.7
The Commission consists of nine members or Commissioners, who

are appointed by the President for a five year period. The manner
of appointment of AIHRC commissioners has in the past raised
some concerns, particularly in 2013 when it underwent a review.
The UNHCR representative stated that if the AIHRC loses its A
status accreditation, this should be seen as a reflection on the governments
commitment to human rights and not as a reflection on the AIHRCs
work.8
From time to time, the AIHRC has been able to raise issues of
concern regarding the state of human rights in the country, but
its effectiveness remains limited. For instance, in May 2015, the
AIHRC voiced its concern regarding the governments decision
to distribute arms among civilians in the provinces, as a method to
fight insurgency. The Commission asserted that this move would
6
The Provisional Arrangements in Afghanistan Pending the Re-Establishment of
Permanent Government Institutions is referred to as the Bonn Agreement.
7
Information retrieved from the Afghanistan Independent Human Rights
Commission official website at: http://www.aihrc.org.af/ on 02 July, 2015.
8
Clark, Kate and Kouvo, Savi. 2013. Dismantling Human Rights in Afghanistan:
The AIHRC facing a possible downgrading of status , https://www.afghanistan-
analysts.org/dismantling-human-rights-in-afghanistan-the-aihrc-facing-a-
possible-downgrading-of-status/
encourage the further violation of human rights.9 Given that the

density of armed forces to population is among the highest in the
world in Afghanistan,10 particularly in the bordering tribal areas,
this is a serious matter. However, as in the past, the Commissions
concerns were dismissed and its opinion was not taken into account
by government agencies.
Given the kind of serious human rights and security concerns in the
country as a whole, it is not surprising that the AIHRC has rarely
taken up issues relating to the border areas, where the situation is
even more fraught.
The National Human Rights Commission (NHRC) of Nepal is an

independent, statutory, and autonomous body. Initially established
under the Human Rights Commission Act, 1997, the Commission
was recognised as a constitutional body in the subsequent Interim
Constitution of 2006, and currently exists under the Human Rights
Commission Act, 2012.11
The Commission has one Chairman and four other members who
are appointed by the Prime Minister upon the recommendation of
the Constitutional Council. The budget of the Commission arrives
from the government, but it can also receive funds directly from
other sources. If the Commission draws the attention of any agency,
or official, to a matter of human rights violation, the said agency, or
9
Majidi, Tariq. Human Rights Commission Concerned Over Govts Move To
Arm Civilians. Tolonews. May 2015. Retrieved from: http://www.tolonews.com/
en/afghanistan/19662-human-rights-commission-concerned-over-govts-move-to-
arm-civilians
10
One estimate puts the ratio at 1:73 (Bagchi, Suvojit. Chhattisgarh seeks record
number of Central forces for polls. (Raipur) October 3, 2013.)
11
Information retrieved from the NHRC, Nepal official Website at : http://www.
nhrcnepal.org/nhrc_about.html
142 SAHR
official must take action accordingly, and inform the Commission.

The Commission may also consult with or advise the government.
Ten years after its establishment the NHRC has very little to show in
terms of protection of human rights and advocacy. The government
has continued to ignore the recommendations of the Commission,
and in recent years the politicization of the Commission has attracted
great attention. Critics find that the establishment of the NHRC
has hardly anything to show in terms of practical achievement.12
However, despite all the criticism, the Commission has retained its
A status awarded by the ICC in 2014.
The NHRCof India is an autonomous statutory institution which

was established under the Protection of Human Rights Act, 1993.13
The members of the NHRC of India are appointed on the

recommendation of a committee comprising the Prime Minister,
Home Minister, Speaker of the Lok Sabha, Deputy Chairperson
of Rajya Sabha and leaders of the Opposition in the two houses
of Parliament. It is chaired by a retired Chief Justice of the Indian
Supreme Court, and two more members are required to be retired
judges of the Supreme Court and High Courts. In addition, two
members are appointed from among persons having knowledge of,
or practical experience in, matters relating to human rights.
12
Basnet, Gyan. Nepal Human rights Commission: Defender or Pretender?. Foreign
Policy Journal. December 2012, http://www.foreignpolicyjournal.com/wp-content/
uploads/2012/12/121215-Basnet-Nepal-Human-Rights-Commission.pdf .
For a detailed review of the NHRC in India, see G.P. Joshi. National Human Rights
13
Commission- Need for Review. Commonwealth Human Rights Initiative. Delhi. 2004.
An interesting innovation is that the Chairpersons of four National

Commissions dealing with specific marginalised groups are ex-
officio members, being:
National Commission for Minorities
National Commission for Scheduled Castes
National Commission for Scheduled Tribes, and
National Commission for Women.
As with other NHRIs, the NHRC of India is only as effective as the

members appointed to it. While there have been some exemplary
appointees in the past, in recent years the appointment process has
invited considerable criticism, primarily for its lack of transparency.
It is also unfortunate that the ex-officio members from other
National Commissions have not been given a more active role, so
that there is little reference to them even in the annual reports.14
More often than not, complaints are dismissed or disposed of

merely on the basis of a simple denial of violations by the state
agency concerned, with the NHRC exercising its investigative
powers sporadically.15 Even where findings are made against the
state agencies, these are merely recommendatory in nature, and not
binding upon the government.
14
An NGO Report on the Compliance with the Paris Principles by the National
Human Rights Commission of India. Peoples Watch for All India Network of
NGOs and Individuals working with National and State Human Rights Institutions
(AiNNI). 2011, http://www.peopleswatch.org/dm-documents/HRD/NGO%20
Report_Paris%20Principles_NHRC_India.pdf .
15
Submission By The Commonwealth Human Rights Initiative To The Advisory
Committee Created To Review The Human Rights Act 1993.
144 SAHR
It is also not surprising that the finances of the NHRC are tightly
controlled by the government, through its Ministry of Home
Affairs, which is also the ministry in charge of the law enforcement
authorities against whom cases of violations are largely filed.
The case-load of the Commission, nevertheless, is very heavy. While

it was receiving less than 500 complaints a year at the time of its
establishment, today the number of cases has crossed 100,000.
Naturally, there are enormous delays in the handling and disposal
of complaints.
Most relevant for the purpose of the present examination is the

jurisdiction of the NHRC over armed forces and paramilitary forces.
Where the armed forces, which include the naval, military and air
forces and any other armed forces of the Union, are concerned, the
statute provides a special procedure to be followed by the NHRC.16
In complaints relating to human rights violations by the armed
forces the NHRC is limited to seeking a report from the government
and making a recommendation, and cannot make any independent
16
Section 19 of the Protection of Human Rights Act, 1993 states as under:
19. Procedure with respect to armed forces:
(1) Notwithstanding anything contained in this Act, while dealing with complaints of
violation of human rights by members of the armed forces, the Commission shall adopt
the following procedure, namely:
(a) it may, either on its own motion or on receipt of a petition, seek a report from
the Central Government;
(b) after the receipt of the report, it may, either not proceed with the complaint or,
as the case may be, make its recommendation to that Government.
(2) The Central Government shall inform the Commission of the action taken on the
recommendations within three months or such further time as the Commission may
allow.
(3) The Commission shall publish its report together with its recommendations
made to the Central Government and the action taken by that Government on such
recommendations.
(4) The Commission shall provide a copy of the report published under sub-section (3)
to the petitioner or his representative.
investigation. Unfortunately, this provision has been interpreted in a

manner that, for a long time, the NHRC did not entertain complaints
against armed forces personnel at all. Recent efforts to exercise the
limited powers under the statute have gradually been abandoned.
This seriously curtails the potential role the NHRC in India can play
in border areas, where the police and security functions are largely
performed by military and paramilitary forces.
The NHRC has also fallen short in the area of planning, and its
commitment to prepare a National Human Rights Plan of Action
(NHRAP), is yet to be fulfilled. However, the NHRC of India
continues to retain its A status.
Associate members
The Bangladesh Human Rights Commission is a statutory
independent institution, which was set up under the National
Human Rights Commission Act, 2009.17 Members of the
Commission are appointed by the President of Bangladesh upon the
recommendation of a high-ranking Selection Committee, consisting
of seven members under the Chairmanship of the Speaker of the
Parliament. The members are appointed for a term of five years,
up to a maximum of two terms. In reality, however, a majority of
the members are part-timers, which hampers the efficiency and
professionalism of the Commission.
Although the Commission operates independently of the

government and does not require its approval for budgetary
allocations, a modicum of indirect control does inhere. This is
17
Retrieved from The NHRC, Bangladesh website at: http://www.nhrc.org.bd/about.
html on 3 July, 2015.
146 SAHR
because the Commission cannot receive funds directly from a donor,

but can only receive these payments indirectly as grants from the
government or the local authority. Moreover, the bulk of the funds
of the NHRC go towards salaries and remunerations of employees.18
The Commission conducts jail visits, and visits to areas where

human rights violations are reported. It also undertakes training
and awareness campaigns. A serious criticism has emerged in
recent years is that the role of the Commission has been limited to
conducting seminars and symposiums, and writing letters to relevant
government authorities.19
While the Commission has the power to formulate procedural rules,

the only rules which have been enacted till date are in relation to
the staff. Even these have been considerably watered down in the
process of being gazetted through the office of the President.20 The
absence of procedural rules has also led to an increased reliance upon
the mediation process and ad-hoc procedures.21
An analysis of the Annual Reports reveals that the number of

complaints taken up by the Commission, and their disposal, has
increased over the years. The participation of the NHRC in the
UPR of Bangladesh in the United Nations Council in 2012, and
18
Ain O Salish Kendra (ASK). NHRC, Bangladesh: Institutional, functional
and financial independence need to be strengthened, http://www.askbd.org/
ask/2014/01/15/ask-made-submission-official-capacity-assessment-nhrc/ . 2014.
19
Ain O Salish Kendra (ASK). Bangladesh: Still To Prove Itself , http://www.askbd.
org/ask/2013/11/17/bangladesh-prove-itself-chapter-anni-report-2013/ . 2013.
20
Op cit 293
21
Majidi, Tariq. Human Rights Commission Concerned Over Govts Move To Arm
Civilians. Tolonews. May 2015, http://www.tolonews.com/afghanistan/human-
rights-commission-concerned-over-govts-move-arm-civilians .
the conduct of a mock UPR by the Commission, has received great

appreciation.22
However, the Bangladesh NHRC has not responded positively to

criticism of its performance by civil society organisations. In 2012,
a Human Rights Watch report23 recommended the disbanding
of the Rapid Action Battalion (RAB), and the creation of a new
non-military unit within the police or a new institution, which puts
human rights at its core to lead the fight against crime and terrorism.
This recommendation echoed the views of many human rights
organisations in Bangladesh. Not unexpectedly, the report received
strong criticism from the government. What came as a surprise
was the criticism from the Chairman of the NHRC that a foreign
organization like Human Rights Watch cannot recommend disbanding
the Rapid Action Battalion.24 He further opined that that any report
on the human rights situation of Bangladesh should have prior
consultation with the NHRC of Bangladesh.25
A matter of concern is that the Commission itself has appeared to

limit the full scope of its own power through selective interpretation
of the statute. Thus, in cases of extra-judicial killings, and allegations
of disappearances, the NHRC has interpreted Section 18 of the
22
Clark, Kate and Kouvo, Savi. Dismantling Human Rights in Afghanistan: The
AIHRC facing a possible downgrading of status. 2013, https://www.afghanistan-
analysts.org/dismantling-human-rights-in-afghanistan-the-aihrc-facing-a-
possible-downgrading-of-status/
23
Human Rights Watch. The Fear Never Leaves Me: Torture, Custodial Deaths, and
Unfair Trials after the 2009 Mutiny of the Bangladesh Rifles. 2012, https://www.
hrw.org/report/2012/07/04/fear-never-leaves-me/torture-custodial-deaths-and-
unfair-trials-after-2009-mutiny .
24
Majidi, Tariq. Human Rights Commission Concerned Over Govts Move To Arm
Civilians. Tolonews. May 2015, http://www.tolonews.com/afghanistan/human-
rights-commission-concerned-over-govts-move-arm-civilians.
25
Clark, Kate and Kouvo, Savi, op.cit
148 SAHR
Act in a manner which is highly restrictive and does not allow it

to investigate these cases.26 It is not surprising, therefore, that the
Commission has not taken up contentious issues relating to human
rights violations in the border areas, especially where the security
forces are involved.
The NHRC of Sri Lanka is statutory institution established under

the Human Rights Commission of Sri Lanka Act No. 21 of 1996.27
It received constitutional recognition in 2001. Under this statute,
five commissioners are appointed by the constitutional council to
investigate complaints of violations of fundamental rights.
As with the other NHRIs in the region, the Commission has no

powers to enforce its directions and orders, and public authorities
often fail to comply with them. According to some civil society
observers, the former Rajapaksa Government has particularly
marginalized the role of the Sri Lanka NHRC.28
The Commission has played a pro-active role in forwarding a few

cases to the Supreme Court regarding deprivation of personal
liberty, torture, and inhuman and degrading treatment. In these
cases, compensation has been either provided by the state, or the
respective government officials.29
26
Majidi, Tariq, op.cit
27
Skanthakumar, B (2009). Window Dressing? The National Human Rights
Commission of Sri Lanka http://lawandsocietytrust.org/content_images/
publications/documents/nhrc%20report%202009.pdf
28
Human Rights Watch. World Report 2013: Sri Lanka 2013; also see Sri Lanka: The
National Human Rights Commission Marionette of the State in 2013 ANNI Report
on the Performance and Establishment of National Human Rights Institutions in
Asia, pp202, https://www.forum-asia.org/?p=16848
29
Wijegoonawardena, S. The Human Rights Commission of Sri Lanka
Asia Pacif ic Human Rights Information Centre. Volume 26. December 2013,
Even the three countries where the NHRIs have been awarded an
A status, namely, Afghanistan, India, and Nepal, we find the Paris
Principles are not being followed in their true spirit. As a result,
there continue to be structural constraints upon the powers of the
NHRIs. Even where the statutes provide extended powers, the
NHRIs are chary of exercising their full power. When it comes
to security and armed forces in border areas, with the attendant
rhetoric of nationalism and protection of the integrity of borders
against the enemy, the NHRIs are unable to take effective action.
Even assuming they would be able to surmount such constraints, the
jurisdiction of each NHRI is limited to the geographical boundaries
of the nation-state, and there are no mechanisms for cross-border
collaboration or communication between various NHRIs, or any
potential space for taking up issues which affect populations at the
border areas of two or more countries. Therefore, we must turn to an
examination of mechanisms which have cross-border jurisdiction to
search for an avenue where the violation of human rights in border
areas can be effectively addressed.
Complaints Procedure of the Human Rights Treaty Bodies

Most of the countries in the SAARC region have signed the major
international treaties and conventions relating to human rights.
However, other than the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW), the optional
protocols of these key conventions have not been signed by any
of the countries. This is a matter for concern since the optional
protocols recognise the jurisdiction of the Treaty bodies to entertain
complaints/petitions with regard to violations of the relevant
instrument.
http://www.hurights.or.jp/archives/focus/section2/2001/12/the-human-
rights-commission-of-sri-lanka.html
150 SAHR
Each human rights instrument has a separate treaty body,30 which

has been invested with the responsibility of examining complaints.
Broadly, the complaints mechanism allows for three kinds of
complaints procedures.
1. Individual Complaint Procedures

The individual complaint procedure is available in exceptional
circumstances with respect to a limited number of the treaty bodies.
The CCPR, CERD, CAT, CEDAW, CRPD and CED allow
petitions from individuals, provided that the concerned State has
recognized the competence of the concerned Committee to receive
such complaints,31 and only where the domestic remedies have been
exhausted. A third-party may also file a complaint on behalf of an
individual, if the individual has provided written consent, or the
petitioner is able to show why such permission cannot be attained.
At times the requirement of non-availability of domestic remedies

can become a barrier, as often a domestic remedy may be available
only in theory. It is also not a guarantee of redress, as the remedy is
available at the discretion of the Committee. In addition, for some
30
The treaty bodies of the key human rights instruments are as under:
yy CCPR: Human Rights Committee
yy CESCR: Committee on Economic, Social and Cultural Rights
yy CERD: Committee of the Elimination of Racial Discrimination
yy CEDAW: Committee on the Elimination of Discrimination against Women
yy CAT: Committee Against Torture
yy SAT: Subcommittee on Prevention of Torture
yy CRC: Committee on the Rights of the Child (CRC)
yy CMW: Committee on the Migrant Workers (this committee is not yet functional
to receive complaints)
yy CRPD: Committee on the Rights of People with Disabilities
yy CED: Committee on Enforced Disappearances
31
Mere signing of the treaties or the optional protocol does not amount to recognition
of competence of Committee to receive complaints.
of the Committees, such as the Committee on Migrant Workers, the

remedy is not available as yet.
2. Inter-state Complaints
The second procedure available for complaints regarding the violation
of rights is the state-to-state complaints procedure. This allows for
one state to make complaints to the concerned Committee regarding
another state. In order to exercise this procedure, both states need to
have signed and ratified the optional protocol in this regard.
The challenge in such procedures is not just that it is only the state
which can file complaints (which could result in a likelihood of a
bias or exclusion of certain sections of the society). The problem is
obvious as this procedure has never been used, and the likelihood
of its use remains low due to the political repercussions of such a
complaint. As such, the efficacy of this procedure remains untested.
3. Inquiries
Under this procedure, the Committee may itself inquire into a matter
that it feels is of grave concern, when it is brought to its notice by
a reliable source. Like other procedures above, the exercise of this
procedure is also subject to the states recognition of competence of
the Committee to take such action.
Naturally, whether a matter is grave enough to invite its intervention

remains a matter of subjective determination for the Committee, as
is the precise definition of a reliable source.
All the three procedures described above are only available in special
circumstances with conditions that are difficult to satisfy. Vulnerable
152 SAHR
sections of society may find the procedural aspects of making such

complaints daunting. For instance, the complaints need to be written
in a prescribed format, using a UN working language. Keeping in
mind that many sections of people in the SAARC countries have
poor literacy rates, this could be a challenge, even if the language
barrier is surmounted.
The Table below summarises the position with regard to the

ratification of the key international instruments and the relevant
optional protocols for the South Asian countries.
Table III: Ratification/ accession by SAARC countries of major

international instruments on human rights
Country
Afghanistan
Bangladesh
Sri Lanka
Maldives
Pakistan
Bhutan
Nepal
India
CERD 1983 1979 * ( S - 1968 1984 1971 1966 1982

1973)
ICCPR 1953 2000 N 1979 1906 1991 2010 1980
ICCPR-OP N N N N 2006 1991 N 1997
ICCPR-OP2 N N N N N 1998 N N
CESCR 1983 1998 N 1979 2006 1991 2008 1980

CESCR-OP N N N N *(S- N N N
2011)
CEDAW 2003 1984 1981 1993 1993 1991 1996 1981
CEDAW-OP N 2000 N N 2006 2007 N 2002
CAT 1987 1998 N 1997 2004 1991 * ( S - 1994

2003)
CAT-OP N N N N 2006 N N N
CMW N 2011 N N N N N 1996
Country
Afghanistan
Bangladesh
Sri Lanka
Maldives
Pakistan
Bhutan
Nepal
India
CED N N N 2007 2002 N N N
CRPD 2012 2007 * ( s - 2007 2010 2010 2011 *(s-
2010) 2007)
CRPD-OP 2012 2008 N N N 2010 N N
CRC 1994 1990 1990 1992 1991 1990 1990 1991

CRC-OP(AC) 2003 2000 2009 2005 2004 2007 * ( S - 2000
2007)
CRC- OP (IC) N N N N *(S- N N N
2002)
CRC- OP (SC) N 2000 2009 2005 2002 2006 2011 2004
ICC- Rome 2003 2010 N N 2011 N N N
Statute
Legend: The figures indicate the date of ratification; * = signed but not
ratified; CERD= Convention on Elimination of Racial Discrimination;
ICCPR= International Covenant on Civil and Political Rights; ICESCR=
International Covenant on Economic Social and Cultural Rights; CEDAW=
Convention on the Elimination of all Forms of Discrimination Against
Women; CAT=Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment); CMW=International Convention
on the Protection of the Rights of All Migrant Workers and Members of
Their Families; CED=International Convention for the Protection of All
Persons from Enforced Disappearance; CRPD=Convention on the Rights
of Persons with Disabilities; CRC=Convention on the Rights of the Child;
ICC=International Criminal Court; OP=Optional Protocol; AC=on the
involvement of children in armed conflict; IC= a communications procedure;
SC= on sale of children, child prostitution and child pornography.
154 SAHR
Even a cursory glance at the table reveals that most countries have,
while ratifying the international instrument, refused to sign and
ratify the optional protocol which would make them subject to the
full operation of the international instrument and the treaty body
concerned. The Optional Protocols to the ICCPR have been ratified
by Maldives and Nepal, while Afghanistan, Bangladesh, Pakistan,
Bhutan, Sri Lanka and India have not signed even the first Optional
Protocol. The Optional Protocol to the ICESR has not been ratified
by any of the SAARC countries.
It is also a matter of concern that while all of the Americas, most

of Europe, and a considerable number of countries in Africa have
signed the Rome Statue of the International Criminal Court,
amongst the SAARC countries only three countries are party
to the Statute, namely, Bangladesh, Afghanistan and Maldives.
Accordingly, serious crimes relating to war and war-like situations,
such asgenocide, crimes against humanity, war crimesand crimes of
aggression, remain outside the purview of international mechanisms.
Reporting procedures
The result is that most of the countries are only accountable to the
treaty bodies to the limited extent of providing periodic reports. Each
Convention requires that an initial report be submitted within a year
of ratification, and thereafter that periodic reports be submitted at
regular intervals. The periodicity of the reports to be provided to
different treaty bodies is given in the table below.
Table IV: Periodicity of reporting under different international

instruments
TREATY PERIODICITY OF STATE REPORTS
INITIAL PERIODIC REPORTS
REPORT
ICERD 1 Year Every 2 years
(but in practice generally every 4 years as two
combined periodic reports)
ICESCR 2 Years Every 5 Years
ICCPR 1 Year Generally every 4 years, but the HRC varies
the periodicity in accordance with its follow-
up procedure
CEDAW 1 Year Every 4 years, or whenever requested by
CEDAW
CAT 1 Year Every 4 years, but varies due date for next
periodic report
CRC 2 Years Every 5 years
CMW 1 Year Every 5 years, and whenever requested by
CMW
CRC- 2 Years Every 5 years or with next CRC report
OPSC
CRC- 2 Years Every 5 years or with next CRC report
OPAC
CRPD 2 Years Every 4 years
Source: The International Service for Human Rights. 2010. Simple Guide to the UN
Treaty Bodies
These reporting procedures are important mechanisms for ensuring

accountability of state parties to their international human rights
obligations, especially since in recent years many of the treaty bodies
have encouraged the submission of alternative reports by civil society
156 SAHR
organisations and NHRIs. Unfortunately, there are continuous and

endemic delays in the submission of these periodic reports by most
SAARC countries, to the extent that the Treaty bodies have been
forced to accept severely delayed reports, and even combined reports
for two or more reporting periods. For instance, Pakistan submitted
its first report to the Committee on Economic, Social and Cultural
Rights, due in 1979, with a delay of 11 years in 1990. Bangladesh
submitted its report to the Human Rights Committee, due in
2001, in the year 2015. Similarly, Afghanistan submitted its second
ICERD report due in 1984 in 1990, and India took over 16 years to
submit its CEDAW report due in 1994. Maldives and Nepal each
took 10 years to submit their CAT report, while Bhutan took 10
years to submit its CRC report, and Sri Lanka submitted a report to
the ICCPR after a delay of 7 years.32
Special Procedures
It is apparent that serious structural limitations prevent UN treaty
bodies from enforcing compliance with international human rights
standards and obligations. The establishment of Special Procedures
and Special Rapporteurs under the OHCHR is a recent initiative
that attempts to address some of these limitations.
The special procedures refer to a range of varying procedures
established with respect to particular themes or human rights issues,
or situations in countries. The special procedures, unlike other UN
mechanisms, do not require the state parties to be party to any human
32
The OHCHR website provides information according to the country from
the treaty body database which can be accessed at
http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx.
rights treaty. As of 27th March 2015, there are 41 thematic mandates

and 14 country mandates, which have the following functions:33
analyse the relevant thematic issue or country situation
on behalf of the international community;
advise on the measures which should be taken by the
Government(s) concerned and other relevant actors;
alert UN organs and agencies and the international
community in general to the need to address specific
situations and issues. In this regard they have a role in
providing early warning and encouraging preventive
measures;
advocate on behalf of the victims of violations through
measures such as requesting urgent action by relevant
States, and calling upon Governments to respond to
specific allegations of human rights violations and
provide redress;
activate and mobilize the international and national
communities to address particular human rights issues
and to encourage cooperation among Governments,
civil society and inter-governmental organisations.
There are two kinds of special procedures. Special Rapporteurs are

independent experts which are mandated to examine a particular issue.
There are also Working Groups, which are a group of members, one
from each of the five UN Regional groupings.34 Members function
in their individual capacities for a term of up to six years, and are not
33
Manual of the United Nations Human Rights Special Procedures. 2006.
34
The United Nations regional groups are African Group, Asia-Pacific Group, Latin
America and the Caribbean Group, Eastern Europe Group, and the Western
European and others Group.
158 SAHR
remunerated. The special rapporteurs coordinate with the OHCHR

to report annually to the HRC, as well as to the General Assembly.
The initiatives and interventions which the Special Procedures can

take are as follows:
1. Country visits - where either at the invitation of the
state, or a standing invitation35 the Special Rapporteur
analyses the human rights situation of the country.
Amongst the SAARC Countries, India is the only
country to have extended a standing invitation.
2. Communications refers to sending appeals or letters
to the respective state, or in exceptional circumstances to
non-state actors, on receiving information of a human
rights violation. The communication seeks clarifications
regarding specific situations, and subsequent action
taken, when required. An annual record of such
communications is maintained.
3. Working visits- consist of mediation, as well as
establishing best practices, and working with partners
to raise awareness.
4. Others such as preparation of studies, establishing
guidelines, or expert consultations, seminars and
conferences.
Apart from reporting on these activities and interactions with

the government, the Special Procedures also conduct follow-
up and interactions with other international and regional human
35
By extending a standing invitation, States announce that they will always accept
requests to visit from all special procedures. As of 1 June 2015 there are 110 members
states which have extended a standing invitation to thematic special procedures.
rights mechanisms. Being a relatively new mechanism, the special

procedures are slowly gaining traction in the South Asian regions.
However, even at this early stage the impact is significant. For
instance, the country visit of the Special Rapporteur on extrajudicial,
summary or arbitrary executions, Mr. Christof Heyns, to India in
March, 2012 became a rallying point for victims groups and civil
society organisations to raise awareness regarding the egregious
practice of fake encounters. The report of the country visit has been
widely broadcast, and has been placed before the Supreme Court
in pending litigations on the issue, where it has been cited with
approval.36
Universal Periodic Review

The adoption of the UPR mechanism by the UN in 200637 created a
significant opportunity and space to hold governments accountable
to their national and international human rights commitments. The
UPR is a unique peer review process of the HRC which involves a
review of the human rights records of all 193 UN member states
once every four and a half years. The reviews are conducted by
the UPR Working Group which consists of the 47 members of
the HRC. However, any UN member state can take part in the
discussion/dialogue with the reviewed states. Each state review is
assisted by groups of three States, known as troikas, who serve as
rapporteurs.38
36
Order dt. 4th January, 2013, in Writ Petition (Criminal) No.129 of 2012,
Extra Judicial Execution Families Association (EEVFAM) & Anr. vs. Union of India &
Anr. Supreme Court of India.
37
Resolution adopted by the General Assembly, 60/251. Human Rights Council, 3
April 2006, A/RES/60/251.
38
Basic facts about UPR. Accessed on 25 August,2016 at http://ohchr.org/EN/
HRBodies/UPR/Pages/BasicFacts.aspx
160 SAHR
The ultimate goal of the UPR is an improvement of the human

rights situation in every country with significant consequences for
people around the globe. The UPR is designed to initiate, support,
and expand the promotion and protection of human rights on the
ground. To achieve this, the UPR involves assessing states human
rights records and addressing human rights violations wherever they
occur.39
During the course of the UPR, the member states give

recommendations to the state under review, leaving it for the country
under review to accept or reject the recommendations offered.
During the first cycle, all UN member states have been reviewed.
The second cycle, which officially started in May 2012 with the 13th
session of the UPR Working Group, will see 42 states reviewed each
year. The reviews take place during the sessions of the UPR Working
Group which meets three times a year.
The documents on which the reviews are based are:40

1. information provided by the State under review, which
can take the form of a national report;
2. information contained in the reports of independent
human rights experts and groups, known as the Special
Procedures, human rights treaty bodies, and other UN
entities;
39
ibid
40
Universal Periodic Review (UPR), IAS Preparation Online accessed on 25 August
2016 at https://iaspreparationonline.com/2013/01/31/universal-periodic-review-
upr/
3. information from other stakeholders41 including NHRIs

and non-governmental organizations.
On the basis of these documents, the UPR assesses the extent

to which states respect their obligations set out in the various
international instruments relating to human rights to which the
state is a party, and also voluntary pledges and commitments made.
International humanitarian law obligations are also considered.
Following the review by the Working Group, an outcome report is

prepared by the troika with the involvement of the state under review
and assistance from the OHCHR, which provides a summary of the
actual discussion, and the recommendations. The report then has to
be adopted at a plenary session of the HRC. During the plenary
session, the state under review can reply to questions and issues
that were not sufficiently addressed during the Working Group and
respond to recommendations that were raised by peer states during
the review.
The state has the primary responsibility to implement the

recommendations contained in the final outcome, and during
the second review the state is expected to provide information on
what they have been doing to implement the recommendations
made during the first review as well as on any developments in the
field of human rights. The international community will assist in
implementing the recommendations and conclusions regarding
capacity-building and technical assistance, in consultation with the
country concerned.42
41
OHCHR has released Technical guidelines for the submission of stakeholders,
http://www.ohchr.org/EN/HRBodies/UPR/Documents/TechnicalGuideEN.pdf .
42
Basic facts about UPR. Accessed on 25 August,2016 at http://ohchr.org/
EN/HRBodies/UPR/Pages/BasicFacts.aspx
162 SAHR
If necessary, the HRC can address cases where States are not co-
operating, and decide on the measures it would need to take in case
of persistent non-cooperation by a State with the UPR.
A detailed examination of the UPR process is beyond the scope of

the present study. It would be useful, however, to look at the example
of India to gain an insight into this process. Indias first UPR took
place in 2008. At its second UPR in 2012, India received 169
recommendations, and the Indian Government appeared before the
HRC to respond to these recommendations.
The Government of Indias response reflected a pattern of accepting

recommendations that were generalized and broadly worded, while
avoiding those recommendations which require specific and targeted
commitments. A number of key recommendations, therefore, were
not accepted by the government. According to a press release issued
shortly thereafter by a civil society organisation:
The blatant refusal of the Government to adopt any

recommendation to review or repeal the Armed Forces
(Special Powers) Act, which is a cause of systematic human
rights violations, is very disturbing. Despite multiple
recommendations that were made by the Special Rapporteur on
extra judicial, summary and arbitrary executions who visited
India in March this year, and by the Council members during
the second UPR, the government has failed to accept any
recommendations to curb the impunity of security forces and
bring the perpetrators of human rights violations to justice.43
43
Working Group on Human Rights in India and the UN (WGHR). Comprehensive
review of Indias human rights record at the UN Human Rights Council: Glaring
Omissions, Some Progress. Press Release dated 21.9.2012, http://wghr.org/wp-
content/uploads/2013/07/WGHR-UPR-press-release-21.09.2012.pdf .
Needless to say, the failure to address impunity of security forces

under special laws has important implications for human rights
excesses in border areas in particular.
Unfortunately, during the UPR of Sri Lanka in 2012, the Sri Lankan
government rejected 98 recommendations made to it, including
those regarding accountability of security forces (made by Canada).44
Sri Lanka has time and again rejected the UPR recommendations.
In the first periodic review it rejected several recommendations
including one to establish an independent human rights monitoring
mechanism.45 It also rejected the recommendation to combat
impunity, and refused to ratify the Rome Statute.46
The UPR process, by its very voluntary nature, has tremendous

potential for ensuring compliance by the state parties, even while it is
compelled to accept the pace of advancement set by the country itself.
Whether the UPR process has the potential to advance cooperation
between South Asian state parties on the sensitive issues of human
rights violations in border areas, as highlighted in the present study,
still remains to be fully examined.
44
Rutnam, Easwaran. Lanka rejects 98 recommendations at UPR. The Sunday Leader.
Retrieved from: http://www.thesundayleader.lk/2012/11/05/lanka-rejects-100-of-
210-recommendations-at-upr/
45
Amnesty International. Sri Lanka: Eighth Session of the UN Human Rights
Council: Review of Sri Lanka under the Universal Periodic Review: Amnesty
Internationals reflections on the outcome. June 2008 AI Index: ASA 37/023/2008,
https://www.amnesty.org/en/documents/asa37/023/2008/en/
46
Amnesty International. Submission to the UN Universal Periodic Review 14th
Session of the UPR Working Group. April 2012. Index: ASA 37/008/2012.
164 SAHR
South Asian Association for Regional Cooperation

SAARC was formalized in 1985 by adopting the SAARC Charter,
and therefore is one of the most recent regional mechanisms in place.
SAARC was established with an aim to promote the welfare of the
citizens of the various states in the South Asian region through
mutual cooperation in areas which require development. Even
though SAARC has been effective to a certain extent at multilateral
level, Article X(2) of its Charter totally constraints it from engaging
in bilateral issues.47
Conventions of the SAARC countries deal with multilateral issues

such as drug trafficking, human trafficking, terrorism, and welfare of
children. The SAARC conventions on these issues are:
SAARC Convention on Combating and Prevention of
Trafficking in Women and Children for Prostitution
Convention on Promotion of Welfare of Children
Convention on Mutual Assistance on Criminal Matters,
July 2008
SAARC Convention on Narcotics Drugs
SAARC Regional Convention on Suppression of
Terrorism
The SAARC Social Charter calls for promotion of welfare of

people, and endeavours to target social development and economic
growth through focusing on health, food security, child development,
and equality for women. None of the treaty obligations at the level
of SAARC, however, deal squarely and directly with the core issue
of human rights.
47
SAARC Charter, http://saarc-sec.org/SAARC-Charter/5/
Unfortunately, even though most of the state parties in the South

Asian region have common challenges and concerns, the requisite
level of cooperation and collaboration, as envisaged at the time of
establishment of the Association, has not been forthcoming. The
SAARC has been beset by numerous sub-regional conflicts, and
perhaps a lack of commitment on the part of the respective state
parties. An unfortunate result has been the proliferation of human
rights violations.
The regional conventions have certainly dealt with some important

issues which require collaborative efforts between the state parties.
The SAARC Convention on Combating and Prevention of
Trafficking in Women and Children for Prostitution is an example
of one such positive initiative. Unfortunately, like many other
initiatives, the convention against trafficking relies heavily on
existing legal mechanisms within the states, and the assumption of
mutual assistance and cooperation of these domestic institutions.
Thus Article V of the Convention against trafficking states:
In trying offences under this Convention, judicial authorities

in Member States shall ensure that the confidentiality of the
child and women victims is maintained and that they are
provided appropriate counseling and legal assistance.
Further Article VI places an obligation on the state parties to

provide each other with legal assistance in respect of investigations,
inquiries, trials or other proceedings with regard to offences under the
Convention, and, as if in recognition of the reality that on occasion
such cooperation may not be forthcoming, requires the nation
states to provide reasons where they are not able to provide prompt
166 SAHR
support.48 Without additional mechanisms, investigative resources,

special procedures and subsidiary bodies, it is no surprise that these
efforts have not resulted in a substantive change.
In theory, the remedies under the UN treaty bodies and conventions

on various human rights issues are available to the SAARC countries
in case of violations. However, in practice the situation is more
complicated. While the conventions endeavour to recognise rights,
such as rehabilitation in the case of trafficking, the lack of regional
mechanisms for redress in case of violation of such rights means that
there is no practical protection for the individuals.
In most matters relating to human rights, there continues to

be excessive reliance upon the international treaty bodies and
conventions for the protection of these rights and redressal for their
violation. Since most of the state parties have not signed the optional
protocols giving adjudicatory power to the treaty bodies, and some
have not even ratified the core UN conventions on human rights,
this is a serious gap. There continues to be a lack of a consolidated
uniform effort to develop committees which could deal with the
most basic human rights violations.
48
Article VI (1) of the SAARC Convention on Combating and Prevention of
Trafficking in Women and Children for Prostitution states as under:
(1) The State Parties to the Convention shall grant to each other the widest measure
of mutual legal assistance in respect of investigations, inquiries, trials or other
proceedings in the requesting State in respect of offences under this Convention.
..
(2.) Requests for assistance shall be executed promptly in accordance with their national
laws and in the manner requested by the Requesting State. In the event that the
Requested State is not able to comply in whole or in part with a request for assistance
or decides to postpone execution it shall promptly inform the Requesting State and shall
give reasons for the same.
Even the limited number of conventions which have been ratified by

the state parties are timid in their formulation, in that many merely
reiterate the international treaty on the relevant subject. For instance,
the SAARC Convention on the Promotion of the Welfare Children
simply reiterates its commitment to the UN Convention on the
Rights of the Child.49 Given that several of the states have refrained
from signing these UN Conventions, such regional conventions are
not binding.
A comparison between the ASEAN mechanism and the Inter

American mechanism reveals that the former is at a nascent stage of
development and has a long way to go before it meets some of the
basic requirements of a viable regional mechanism for the redressal
of human rights violations (see Annexures A and B). The mechanism
available at the level of SAARC, however, does not even match the
limited achievements of the ASEAN mechanism, and is very far
indeed from the kind of responsive and responsible mechanism
which is essential to meet the human rights needs of the region, in
the nature of the Inter American system.
Clearly, a regional mechanism such as the European Commission

or the Organisation of American States, both of which have proven
their efficacy, is required in the region to address human rights
concerns. Where these human rights violations are taking place in
border areas, and with respect to populations in the border areas, the
absence of a regional mechanism which has authority over nation
states across borders has led to grave consequences.
49
Article III (3) the SAARC Convention on the Promotion on the Welfare of
Children states as under:
The State Parties consider the UN Convention on the Rights of the Child as a
comprehensive international instrument concerning the rights and well being of the
child and shall, therefore, reiterate their commitment to implement it.
168 SAHR
vii
Preliminary Recommendations and

Conclusion
The present study demonstrates that the availability of information
is uneven across different countries, a natural result of the location
of this writer and the research team in India. Therefore, for instance,
relevant statutory and constitutional provisions, as well as court
decisions from different countries were not readily available. On
certain issues information was not available at all. It would be
appropriate if the study is examined in-depth by civil society
representatives from different countries in the SAARC region and
recommendations for action emerge from a consultative process
which would benefit from the experiences of experts.
Nevertheless, the study demonstrates certain cross-cutting aspects

of human rights violations in border areas in this region, and based
on these emerging trends, a few preliminary recommendations are
being made below. These can be treated as starting points to begin
such discussion.
1. Cross border conversations between civil society

organisations to draw attention to human rights
violations which occur in border areas, and an attempt
to challenge the received wisdom that protection of
national borders, by any means including force and
violence, is acceptable. The language and meaning
of human rights must permeate popular discourse
through a special focus and also joint initiatives which

transcend borders themselves. One initiative where
such conversations have already begun is the Peoples
SAARC; these can be strengthened. Another initiative
is the Justice Project, where issues of human rights and
justice in SAARC countries are under scrutiny. While
human rights violations in border areas are not an area
of focus at present, it can be something these networks
take up in future.
2. Holding security forces accountable for violations: civil

society organisations in every country in the region are
engaged in this challenging task. This study highlights
that there are parallels in the law and legal framework
in these countries, due to their shared historical
development. However, different strategies have been
used with varying results in challenging the status quo
and strengthening the rule of law. It is important that
these strategies and experiences are shared, in the hope
that they can enable civil society organisations to explore
new approaches if they have reached dead-ends.
3. Holding nation states accountable to international human

rights standards: The study reveals serious gaps in
legal and policy frameworks to hold nation-states
accountable to international standards of human rights,
particularly with regard to border areas. Overcoming
these shortcomings will require a multiplicity of efforts.
a. Failure of most of the countries in the region to sign

the optional protocols, and thereby subject themselves
to the international dispute redressal mechanisms,
170 SAHR
is a glaring gap, especially with regard to violations

committed by security forces in the border areas.
Renewed efforts are required to ensure these optional
protocols are acceded to.
b. Special laws which grant immunity/ protection from

prosecution to security forces for violations in border
areas need to be revisited. While these laws may be
important, where violations occur in border areas, the
failure of the legal framework is intense. The generally
accepted mind-set that borders must be protected
at any cost, including use of force, finds no counter-
narrative within the normative framework of the
laws applicable in the areas, since these laws seem to
reinforce this worldview rather than challenge it.
c. Another systemic failure results from the restricted

jurisdiction of civilian courts. By and large, it is
the special military courts which have overriding
jurisdiction in such cases. Even otherwise, the
jurisdiction of courts is restricted to geographical
areas, and most certainly courts on one side of an
international border have no jurisdiction over offences
committed on the other side of the border, albeit
against citizens over which it has such power. This
is a real conundrum which needs to be addressed,
especially in light of the fact that international dispute
redressal mechanisms are not available.
d. Enactment of special protective laws at the national

level is important, especially in areas where there are
clear gaps as pointed out by the present study, such as
in the case of refugee law. Towards this end, a draft

legislation which was proposed several years ago
by civil society organisations, has been included at
Annexure C. This draft legislation can be the starting
point for advocacy in the region in favour of such
legislations.
e. The development of a Regional Protocol for the

protection of rights of refugees, migrants, internally
displaced and stateless persons had been suggested
earlier (see Annexure D below). A protocol which
specifically acknowledges the historical dynamics as
well as the nature of human rights violations in the
SAARC region would act as a normative standard for
governments to which they can be held accountable
by civil society, judiciary, international agencies and
NHRIs.
4. Regional human rights mechanism: A regional human

rights mechanism does not exist in SAARC. A regional
mechanism to address human rights violations, similar
to the Inter-American Commission and Court of
Human Rights has been called for by the regional civil
society. However, initiatives made in this direction1 have
not received the necessary traction.
5. Strengthening the NHRIs and expanding their mandate: It

is important to ensure that NHRIs are able to function
as autonomous bodies within countries based on the
1
See, for instance, KATHMANDU STATEMENT 2011- Outcome Document
of the Second Sub-Regional Workshop on Human Rights Mechanism in South
Asia, 25-26 July 2011, Kathmandu, Nepal.
172 SAHR
Paris Principles. It is also crucial to ensure that the

curtailment of their jurisdiction, whether by statute or
due to geographical boundaries, is eased. Collaborative
joint missions/consultations of NHRIs are necessary
to ensure that human rights violations of the nature
described in the present study are addressed.
6. The role of the international community: Civil society

organisations are struggling with the refusal of
governments to accede to optional protocols of a host of
human rights conventions and their consequent refusal
to be subject to the jurisdiction of international dispute
redressal mechanisms. While pressure on governments
to accept these optional protocols must continue, the
UN Special Procedures can be activated to address the
specific violations in the border areas. This could be done
through the appointment of a Special Rapporteur tasked
with examining human rights violations in border areas,
taking up these issues at the UPR, and so on.
These are only broad and preliminary recommendations, and it

is important that more nuanced and targeted initiatives emerge
through a process of examination and discussion.
The present report commenced with a brief analysis of the Feluni

Khatun case, where a young girl of sixteen years, travelling across the
border from India to Bangladesh for her marriage, was shot dead by
the BSF and left to die a gruesome death entangled on the fence.
While a security force personnel was indicted and prosecuted for the
offence, perhaps in response to pressure from the international press,
he was eventually acquitted. The various threads of violation which
intersect in this one incident have been examined in detail in this
study. What emerges clearly is that while incidents of human rights

violations in the border areas may not have the same immediate
intensity of the Felani Khatun case, nor attain such notoriety, they
constitute a largely neglected fabric of human tragedy that continues
to unfold. A large number of people continue to live within a
cloud of insecurity and threat of violence which is unrelenting and
oppressive, and often manifests in acts of grave brutality that remain
unaddressed by existing institutions.
In conclusion, it is clear that there are some basic steps which need
to be initiated rapidly, even as a multi-pronged approach is pursued
to ensure that such tragedies, which are manifold and ongoing, can
one day become a thing of the past.
174 SAHR
ANNEXURE A
A Brief Note on the Inter-American Mechanisms for

Protection of Human Rights
The OAS or the Organisation of American States is governed by the
Charter of the OAS, which is a treaty creating the OAS which was to
put into practice the principles on which it is founded, and to fulfill
its regional obligations under the Charter of the United Nations.1
It is also governed by the American Convention of Human Rights,
which aims to consolidate in this hemisphere, within the framework
of democratic institutions, a system of personal liberty and social
justicebased on respect for the essential rights of man.2
The Inter-American system comprises of two key bodies, namely, the

Inter-American Commission of Human Rights (the Commission),
and the Inter-American Court of Human Rights (the Court). Both
these bodies are empowered to examine the violations by member
states of the conventions that govern it. The Commission and Court
are charged with interpreting and applying a number of regional
human rights instruments, which include the:3
American Declaration of the Rights and Duties of Man
American Convention on Human Rights
1
Article 2, Charter of OAS, http://www.tjsl.edu/slomansonb/3.5_OASChart.pdf
2
Preamble, American Convention of Human Rights, http://www.hrcr.org/docs/
American_Convention/oashr2.html
3
International Justice Resource Center. Accessed on 25 August 2016 at http://www.
ijrcenter.org/regional/inter-american-system/
Additional Protocol to the American Convention on

Human Rights in the Area of Economic, Social and
Cultural Rights Protocol of San Salvador
Protocol to the American Convention on Human Rights
to Abolish the Death Penalty
Inter-American Convention to Prevent and Punish
Torture
Inter-American Convention on Forced Disappearance of
Persons
Inter-American Convention on the Prevention,
Punishment and Eradication of Violence Against
Women Convention of Belem do Para
Inter-American Convention on the Elimination of
All Forms of Discrimination Against Persons with
Disabilities
Additionally, the following documents guide the Court and

Commissions interpretation of the above instruments:
Declaration of Principles on Freedom of Expression
Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas
Inter-American Democratic Charter
The Inter-American Commission of Human Rights

The Commission monitors the human rights situation in all of the
35 countries of the American continents. The Commission has
seven ranked officers from various states known as Commissioners
176 SAHR
who serve for a period of four years, and may be re-elected only
once. To be elected the person must be of high moral character
and recognized competence in the field of human rights4 It is also
required that the Commissioners must be from different states, and
that no one state can have more than one Commissioner serving at a
given time. The Commissioners serve in a personal capacity, and are
not to be viewed as representing their states. Nevertheless, in case
a matter of their home country is to be considered, the concerned
Commissioner must refrain from participation.
The Commission also has Special Rapporteurs who work on thematic

areas of work of the Commission. Thematic rapporteurships are
usually overseen by one of the seven Commissioners, who may
include the account of the rapporteur into their reports.
The Commission meets several times a year and monitors the human
rights practices of the member states, and publishes special reports,
including annual reports, conducts country visits, facilitates dialogue,
and provides suggestions in matters of human rights violations.
Importantly, the Commission also receives complaints regarding

human rights violations, in the form of petitions. The petitions may
be submitted by individuals or groups, such as NGOs (recognized by
the respective Member State). Petitions can also be filed on behalf of
another person, either with the express permission of the individual,
or citing reasons why the individual cannot submit the petition
personally, and their permission cannot be obtained. The petition
must be submitted in the standard form, in the official language of
the respondent country.
4
Article 34, American Convention of Human Rights, http://www.refworld.org/
docid/3ae6b36510.html
The conditions which must be satisfied for the purpose of filing a

petition are similar to those of other international committees, as
under:
The petitioner must have exhausted domestic remedies in
accordance with general principles of international law.
The petition should be submitted within a period of
6 months from the date on which the victim of the alleged
violation was notified of the final domestic judgment in his
case.
The latter requirement, however, does not prevent the admissibility

of a petition if it can be shown that domestic remedies do not
provide for adequate due process, effective access to those remedies
was denied, or there has been undue delay in the decision on those
remedies. The rules of procedure of the Commission provide that the
burden of demonstrating the non-exhaustion of domestic remedies
by the victim shall be on the respondent government.5
Where a particular matter has previously been decided by other

international dispute settlement mechanisms, such as treaty bodies
of the United Nations, the Commission cannot take up such issues.
Upon receipt of the petition, the Commission also sends the same
to the respondent state, which submits its reply, and thereafter an
opportunity is given to the petitioner to comment upon the reply.6
Where the Commission finds that there may be danger to an

individual or group of individuals in a particular matter, the
5
Inter-American Mechanisms. Redress. Retrieved on August 10, 2015 from: http://
www.redress.org/regional-human-rights-mechanisms/inter-american-mechanisms
6
Ibid.
178 SAHR
Commission may allow a request for precautionary measures as an

interim measure. For this purpose, an application must be submitted
enumerating the risks, and must mention if the state is aware of such
risks, and if any measures have subsequently been taken.
The Commission has the option of facilitating a friendly settlement

between the parties. After considering both sides of the matter, the
Commission prepares a report with its findings. The Commission
also has the option of presenting the case to the Court (see below),
and also request the Court to order provisional measures in apt
situations, where there is danger to a person or persons.
The Inter-American Court of Human Rights

The Inter-American Court of Human Rights is an autonomous
judicial institution with advisory, as well as adjudicatory jurisdiction.
The advisory jurisdiction is available to all members of the Inter-
American States, and not just those who have ratified the convention.
Therefore, as part of its advisory function any member state of
the Organization may consult the Court on the interpretation of
the Convention or of other treaties on the protection of human
rights in the American states. The Court may also, at the request
of any member state of the Organization, issue an opinion on the
compatibility of any of its domestic laws with the aforementioned
international instruments.7
The adjudicatory jurisdiction of the Court extends to those state

parties which have specifically recognized the said jurisdiction by a
declaration, and mere ratification of the Convention does not mean
a recognition of adjudicatory jurisdiction of the Court. Thus, out of
7
See Article 64 of the American Convention of Human Rights. The right of
consultation also extends to the organs listed in Chapter X of the OAS Charter.
the 35 countries governed by the Convention, only 20 countries are

subject to the jurisdiction of the Court.8 In addition, some of the
states who had ratified the Convention, subsequently denounced it9
thereby excluding the jurisdiction of the Court as well.
The Court, like the Commission, has seven judges from seven
different States. Each judge is elected for a term of six years, which
can be renewed for another term of six years.
The Court receives cases for adjudication in several different ways.

One mode is through reference by the Commission, of cases which
it is unable to resolve. Concerned states may also approach the Court
to exercise its jurisdiction in specific cases. It is important to note
that individuals, organizations, or members of civil society cannot
approach the Court directly. Only if a specific matter is forwarded by
the Commission or their respective country can the Court take it up.
The Court is empowered to issue provisional measures in the

interim, such as for protection of persons who are in danger, including
witnesses. The final adjudication of the Court may include directions
for pecuniary and non-pecuniary reparations. The Court, however,
cannot establish individual guilt.
8
The following countries have signed the Convention, but do not fall under the
Courts jurisdiction: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa
Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras,
Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, Dominica, Jamaica,
and Grenada.
9
The States of Trinidad & Tobago and Venezuela had ratified the Convention, but
have denounced it in 1998 and 2012 respectively. The State of Peru had also desired
to denounce the mechanism, but has not followed the prescribed procedure of
denunciation.
180 SAHR
During the initial years, the Court primarily played an advisory

role, and it was only in 1986 that it began exercising its adjudicatory
jurisdiction to address a variety of contentious issues. Since then,
the Court has not only adjudicated on matters relating to the
Inter-American Convention, but also on ancillary agreements, and a
variety of human rights issues ranging from extrajudicial executions
and enforced disappearances, to rights of labour, land rights, and
freedom of speech and expression.
A significant critique of the Inter-American Court has been that it

has several procedural and structural weaknesses, and its functioning
is infrequent. More serious, however, is an absence of guidelines or
standards for referral of cases for adjudication by the Commission
to the Court, making it an arbitrary procedure. The Commission
also faces an additional challenge in that it must take an objective
decision whether to refer a case to the Court, and then also represent
the victim before the Court.10
The Court has been criticized for its politicization, which is a key
reason why the Convention itself has been denounced by Trinidad
and Tobago. Some of the decisions of the Court have also been highly
criticized, such as the Mapiripn Massacre case from Colombia.11
10
Redress. Inter-American Mechanisms. Retrieved on August 10, 2015 from: http://
www.redress.org/regional-human-rights-mechanisms/inter-american-mechanisms
11
Inter-American Court of Human Rights. September 15, 2005. Mapiripn Massacre
v. Colombia.
This case relates to a massacre committed by an outlawed paramilitary force of

Colombia from July 15-20, 1997 where several people (number known, approximately
49) were killed by beheading, dismembering, including children, and then thrown into
the river. Several other civilians were also kidnapped. The Colombian Government
admitted to violating Articles 4 and 5 of the American Convention of Human Rights
by acts of omission by the military who failed to stop the massacre. Also violated
was Article 19 of the Convention, as the Colombian government failed to protect
There can be no doubt, however, that the Inter-American system for

redressal of human rights violations has played a critical role in the
advancement and protection of human rights in the region, through
turbulent times and many political and socio-economic upheavals.
It is important to point out that the Court and Commissions human

rights promotion work is complemented by the Inter-American
Institute of Human Rights (or IIDH), an autonomous research and
educational institution based in San Jos, Costa Rica.12 The Institute
provides freeonline courseson various human rights topics, publishes
numerous books, operates a digital library, moderates a discussion
listserve, and organizes seminars and workshops for civil society
throughout the Americas. In addition to its online resources, the
Institute is open to visitors seeking research assistance, use of the
physical library, or to purchase publications. This is an important
initiative to facilitate and enable the use of the Inter-American
system to its full potential for the advancement and protection of
human rights.
the rights of the citizens. The Inter-American Court ordered a full investigation to
identify the perpetrators, as well as unknown victims. Additionally, the victims and
their families were to be compensated and programmes be put into place to educate
the members of the armed forces on matters of human rights and humanitarian law.
12
Hauser Global Law School Programme. Accessed on 25 August, 2016 http://www.
nyulawglobal.org/globalex/Inter_American_Human_Rights1.html
182 SAHR
ANNEXURE B
Short Note on ASEAN Mechanisms

with Reference to Human Rights
The Association of South East Asian Nations (ASEAN) is an
intergovernmental regional organization which has established a
regional human rights system, for the ten member states of South-
East Asia, including Brunei, Cambodia, Indonesia, Laos, Malaysia,
Myanmar, the Philippines, Singapore, Thailand, and Vietnam.
ASEAN was established with the 1967 ASEAN Declaration.13 Also

known as the Bangkok Declaration, 1967, this document did not
mention human rights. However, the ASEAN Charter of 200714
pertaining to human rights, which was ratified by all member states
in 2008, currently endeavours to ensure that human rights violations
are addressed.
The ASEAN Intergovernmental Commission on Human Rights

(AICHR) was established in 2009. The AICHRs role ranges from
observing human rights situations, conducting on-site visits and
publishing reports regarding the same, in order to provide early
warning systems in case of serious human rights violations.
13
The 1967 ASEAN Declaration, http://www.internationaldemocracywatch.
org/attachments/220_The%20ASEAN%20Declaration%20-%20Bangkok%20
Declaration.pdf
14
ASEAN Charter of 2007, http://asean.org/wp-content/uploads/images/archive/
publications/ASEAN-Charter.pdf
Under its terms of reference (TOR),15 the AICHR may provide

advisory services, and technical assistance on human rights issues
on request. However, the Commission has no powers to investigate,
monitor or enforce the implementation of its recommendations. The
AICHR has to create awareness, facilitate capacity building, as well
as encourage the accession, and ratification, of various instruments
on human rights, whether regional, inter-regional, or international.
This has been called a promotion first, protection later approach.16
The AICHR is directed by a group which consists of representatives

from each state party. These representatives are nominated by
and answerable to their respective governments, and participate
for a three-year term, which is renewable once. In practice, the
representatives have been drawn from a variety of backgrounds,
including judges, lawyers, retired ministers, and even members of
civil society.
The Commission is required to meet at least twice a year, though, of

course, more meetings can be held. The decisions, if any, made by the
Commission are merely of a consultative nature, and are arrived at
by consensus.
As per its TOR, the AICHR is to evaluate the human rights

situation in the region on the basis of an established work plan at
the completion of five years of its existence, that is, in the year 2015.
15
ToR AICHR,
https://drive.google.com/file/d/0B0lEcMiPqAm1ZFc3OEhpcnozZGs/view
16
Wahyuningrum, Yuyun. The ASEAN Intergovernmental Commission on
Human Rights: Origins, Evolution and the Way Forward. International Institute
for Democracy and Electoral Assistance. 2014, http://www.idea.int/sites/default/files/
publications/the-asean-intergovernmental-commission-on-human-rights-origins-
evolution-and-the-way-forward.pdf
184 SAHR
In accordance with its TOR, the AICHR has adopted the ASEAN
Human Rights Declaration (AHRD). Unfortunately, this is not a
legally binding document, and for this reason has drawn considerable
criticism from the international community as well as civil society
organizations.17 Further, as has been pointed out by the OHCHR
itself, the AHRD ignores several international human rights norms,
and also makes human rights laws subject to domestic national
laws, instead of requiring that domestic laws meet international
standards.18
In 2012, a group of 64 civil society organisations signed a document

denouncing the AHRD for the above mentioned reasons, and also for
its excessive focus on the balancing of the enjoyment of fundamental
rights with government imposed duties on individuals.19
More recently, in 2014 a consultation of various stakeholders
including civil society organisations was held, where a scathing
critique of the AICHR was made (see box).
17
Wahyuningrum, Yuyun, op.cit
18
ibid
19
Civil Society Denounces Adoption of Flawed ASEAN Human Rights Declaration.
November 2012. Retrieved from: http://www.hrw.org/news/2012/11/19/civil-
society-denounces-adoption-flawed-asean-human-rights-declaration
Box 3: Critique of the AICHR

The following critique of the AICHR was made during a
consultation with civil society organisations in 2014.
1) The lack of a protection mandate and the absence of

strong expertise and a dedicated secretariat are the
main hindrances to AICHRs work to promote and
protect human rights in the region.
2) AICHR mandates as stipulated in the ToR have not

been implemented:
a) institutionalizing relationships with national human
rights institutions and civil society organizations
(articles 4.8, 4.9);
b) obtaining information from ASEAN member
states on their promotion and protection of human
rights (article 4.10);
c) encouraging member states to ratify and accede
to international conventions (article 4.5), fully
implementing ASEAN instruments (article 4.6);
d) providing advisory and technical assistance to
ASEAN sectoral bodies (article 4.7); and
e) developing common approaches to and positions on
human rights (article 4.11).
186 SAHR
3) There has been a contradiction in conceptual

frameworks and formulations in relation to the
principles of the rule of law, good governance, respect
of fundamental freedoms and sovereignty, and the
non-interference doctrine in ASEAN.
4) The ongoing lack of respect for human rights and

impunity has undermined efforts to keep the ASEAN
human rights standard on par with international
standards.
5) The AICHR has not been transparent and accessible
at the national and regional levels, which generates
gaps in understanding the role of regional human
rights mechanisms in ASEAN.
6) The AICHR is dominated by representatives who
were government appointed rather than domestically
selected, which contributes to the bodys lack of
independence.
Detailed suggestions20 have also been made to strengthen the

functioning of the AICHR and make it more relevant, including
Review of the TOR in order to incorporate more protection
mandates, including precautionary measures, monitoring
and complaint mechanisms, country visits, country peer
reviews and a communication strategy.
Active engagement of stakeholders in decision-making,
including civil society organisations, at the national and
regional levels.
20
Wahyuningrum, Yuyun, op.cit., page 21-22.
Strengthening the participation of NHRIs

Prioritization of human rights of vulnerable groups
Awareness raising and training of its members
Articulation of the state partys responsibility and
accountability to uphold international human rights
obligations to the AICHR.
Importantly, it is observed that the AICHR should pay more

attention to intergenerational rights in regards to sustainable
development.21 In light of the fact that cross-border multinational
corporations are now ubiquitous in the region, this is indeed a very
important area in which the AICHR must assert a role for itself.
It is clear from the above analysis that the ASEAN mechanism is at

a very nascent stage, and has considerable distance to cover before
it can be on a par with the Inter-American or the European human
rights mechanisms.
21
Ibid., page 22.
188 SAHR
ANNEXURE C
Model National Law on Refugees1
1. Purpose of the Act

The purpose of this Act is to establish a procedure for
granting of refugee status to asylum seekers, to guarantee
to them fair treatment, and to establish the requisite
machinery there for. For the purposes of this Act the
grant of refugee status shall be considered a peaceful and
humanitarian act, shall not be regarded as an unfriendly
act and does not imply any judgement on the country of
origin of the refugee.
2. Terminology
In this Act, unless the context otherwise requires:
i. Asylum seeker means a foreigner who seeks
recognition and protection as a refugee.
ii. Refugee means a refugee defined in Section 4 and
includes dependants of persons determined to be
refugees.
iii. Country of origin means the refugees country of
nationality, or if he or she has no nationality, his or
her country of former habitual residence.
1
Bose, Tapan K. and Manchanda, Rita (eds.). States, Citizens and Outsiders:
The Uprooted Peoples of South Asia. South Asia Forum for Human Rights
Kathmandu (1997), at Appendix A. The footnotes in this Annexure are also
drawn from the same source.
iv. Commissioner means the Commissioner for

Refugees, an executive officer, referred to in Section
8 of this Act.
iv. Commissioner means the Commissioner for
Refugees, an executive officer, referred to in Section
8 of this Act.
v. Refugee Committee means the Committee
established as an appellate tribunal by the
Government under Section 8 of this Act.
3. Non-Obstante Clause
The provisions of this Act shall have effect notwithstanding
the provisions of any other law including The Foreigners
Act.
4. Definition of Refugee
A refugee is:
a. any person who is outside his or her country of origin,
and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the
protection of that country because of a well-founded
fear of persecution on account of race, religion, sex,
nationality, ethnic identity membership of a particular
social group or political opinion2, or,
2
This part of the definition is based on Article 1 (A) (2) of the 1951
Convention on Refugees, which has universal approval for the refugee
definition. However, taking note of the fact todays conflicts are linked to
inter ethnic violence also, ethnic identity is added in the definition as given
in the 1951 Convention on Refugees. It is also understood that membership
of a particular social group includes gender based persecution.
190 SAHR
b. any person who owing to external aggression, occupation,

foreign domination, serious violation of human rights
or other events seriously disrupting public order in
either part or whole of his or her country of origin, is
compelled to leave his or her place of habitual residence
in order to seek refuge in another place outside his or
her country of origin.3
5. Persons who shall be excluded from refugee status

A person shall be excluded from refugee status for the
purpose of this Act if:
a. he or she has committed a crime against peace, a war
crime or a crime against humanity, as defined in the
international instruments drawn up to make provision
in respect of such crimes;
b. he or she has committed a serious non-political crime
outside the country of asylum prior to his or her
admission into this country as a refugee .
6. Principle of Non-Refoulement
a. No refugee or asylum seeker shall be expelled or
returned in any manner whatsoever to a place where
there are reasons to believe his or her life or freedom
3
This part of the definition is based on a border definition incorporated in
Article 1 (2) of the 1969 OAU Convention. Remembering that promotion
of human rights throughout the world of one of the purpose of the United
Nations, and realizing that in practice there are massive violations of human
rights in many parts of the world, and also finding that the Cartagena
Declaration on Refugees in 1984 incorporates massive violation of the
human rights as a ground for treating asylum seekers as refugees, the same is
incorporated in this part of the definition.
would be threatened on account of any of the reasons

set out in sub-sections (a) or (b) of Section 4.
b. The benefit of the present provision may not, however
be claimed by a refugee or asylum seeker where there
are reasonable grounds for regarding him or her as a
danger to the security of the country or who has been
convicted by a final judgement of a serious crime and
constitutes a danger to the community.4
7. Application
a. Where an asylum seeker requests to be recognized as
a refugee either at the point of entry or subsequently,
the country concerned shall act in accordance with the
principle laid down in Section 6 and refer the case to
the Commissioner of Refugees for disposal.
b. Where an application is made by an asylum seeker for
determination of his or her status as a refugee, pending
determination of such status, no restrictions shall be
imposed on the asylum seeker save and except those
that are necessary in the interests of sovereignty and
integrity of the State or public order.
4
This provision does not mean that persons having committed political
crimes are automatically to be considered as refugees. On the contrary, when
there are serious reasons to believe that the asylum-seeker has committed a
politically-motivated crime to endanger the right to life or physical integrity
of another person, this asylum-seeker would normally, not be recognized
as a refugee, unless the punishment for such crime is expected to be
discriminatory or disproportionate.
192 SAHR
8. Constitution of the Authorities

In order to implement the provisions of this Act the
Government shall appoint:
a. Commissioners for Refugees; and
b. A Refugee Committee as the appellate authority
9.
a. A Commissioner for Refugees shall receive and
consider applications for refugee status and make
decisions.
b. The Commissioners for Refugees shall be of a rank not
less than that of an Administrative Head of a District.
10.
a. The Refugee Committee shall be the appellate authority
and receive and consider applications for refugee status
suo moto, or those made by the asylum seekers in
appeal against the decision of the Commissioner.
b. The Refugee Committee shall consist of the following
three members:
i. a sitting or retired High Court Judge designated
by the Government in consultation with the Chief
Justice of the Supreme Court as Chairperson.
ii. two independent members conversant with refugee
matters.
11. Finality of Order

Every order of the Refugee Committee shall be final.
12. Determination of Refugee Status 5

a. An asylum seeker who wishes to claim refugee
status under the terms of this Act shall be heard by a
Commissioner for Refugees before the determination
of his or her status.
b. During the Refugee determination interview, the
asylum seeker shall be given necessary facilities
including the services of a competent interpreter where
required, and a reasonable opportunity to present
evidence in support of his or her case.
c. The asylum seeker, if he or she wishes, shall be given an
opportunity, of which he or she could be duly informed,
to contact a representative of UNHCR.
d. The Asylum seeker, if he or she wishes, shall be entitled
to be assisted in the determination of the status by a
person of his or her choice including a legal practitioner.
e. Where an application by the asylum seeker is rejected,
the Commissioner for Refugees shall give reasons for
the order in writing and furnish a copy of it to the
asylum seeker.
f. If the asylum seeker is not recognized as a refugee, he
or she could be given a reasonable time to appeal to
the Refugee Committee as the appellate authority for
reconsideration of decision.
5
This Article is based on UNHCR Ex Com Conclusion No.8 (XXVII) -
1977 on Determination of Refugee Status.
194 SAHR
g. If the asylum seeker is recognized as a refugee, he or

she shall be informed accordingly and issued with
documentation certifying his or her refugee status.
13. Persons who shall Cease to be Refugees

A person shall cease to be a refugee for the purpose of this
Act if:
a. he or she voluntarily re-avails himself or herself of the
protection of the country of his or her origin; or
b. he or she has become a citizen of the country of asylum;
or he or she has acquired the nationality of some other
country and enjoys the protection of that country, or
d. he or she has voluntarily re-established himself or
herself in the country which he or she left or outside
which he or she remained owing to fear of persecution;
or
e. he or she can no longer, because the circumstances in
connection with which he or she was recognized as a
refugee, have ceased to exist, continue to refuse to avail
himself or herself of the protection of the country of his
or her nationality.
14. Rights and Duties of Refugees

a. Every refugee so long as he or she remains within this
country shall have the right to:
i. fair and due treatment, without discrimination on
grounds of race, religion, sex, nationality, ethnic
identity, membership of a particular social group or
political opinion.
ii. receive the same treatment as is generally accorded

to aliens under the Constitution or any other laws
and privileges as may be granted by the Central or
State Governments.
iii. receive sympathetic consideration by the country
of asylum with a view to ensuring basic human
entitlements.
iv. be given special consideration to their protection
and material well-being in the case of refugee
women and children.
v. choose his or her place of residence and move freely
within the territory of the country of asylum, subject
to any regulations applicable to aliens generally in
the same circumstances.
vi. be issued identity documents.
vii. be issued travel documents for the purpose of travel
outside and back to the territory of the country
of asylum unless compelling reasons of national
security or public order otherwise require.
b. Every refugee shall be bound by the laws and regulations
of the country of asylum.
15. Situations of Mass Influx

a. The Government may, in appropriate cases where
there is large-scale influx of asylum seekers, issue an
order permitting them to reside in the country without
requiring their individual status to be determined
under Section 12 of this Act, until such time as the
reasons for departure from the country of origin have
196 SAHR
ceased to exist, or the government decides that their

status should be determined on an individual basis
under this Act.
b. In the case of asylum seekers who have been permitted
to reside in the country under this provision, they may
be subject to reasonable restrictions with respect to
their location and movement, but will otherwise be
granted normally the same rights as refugees under
this Act.
16. Refugees Unlawfully in the Country of Refuge

The Government shall not impose penalties, on account
of their illegal entry, or presence, on refugees who, coming
directly from a place where their life or freedom was
threatened in the sense of Section 4, enter or are present
in the country of asylum without authorization, provided
they present themselves without delay to the authorities
and show good cause for their illegal entry or presence.
17. Voluntary Repatriation6

The repatriation of refugees shall take place at their free
volition expressed in writing or other appropriate means
which must be clearly expressed. The voluntary and
individual character of repatriation of refugees and the
need for it to be carried out under conditions of safety to
the country of origin shall be respected.
6 This provision is derived from UNHCR Ex Com Conclusion 40 (XXXV) -

1985 on voluntary Repatriation, at para (b).
18. Rules and regulations

The Government may frame rules and regulations, from
time to time, to give effect to the provisions of this Act.
198 SAHR
ANNEXURE D
Recommendations of the Seminar on Refugees,

Migrants, Internally Displaced and Stateless Persons in
South Asia: Need for a Regional Protocol1
The participants of the Kathmandu seminar on Refugees, Migrants

and Stateless Persons in South Asia: Need for a Regional Protocol,
November 18-22, 1996,
Considering that South Asia has the fourth largest refugee

population in the world, not taking into account the millions of
internally displaced persons and environmental refugees;
Noting that in the region of South Asia, governments by arbitrarily

changing their citizenship laws and introducing severe restrictions to
retaining, acquiring or re-acquiring citizenship have created millions
of stateless persons;
Cognizant of the peculiar process of colonial and post-colonial

border making between India, Pakistan, Bangladesh and Nepal
which has divided several trans-border communities disrupting
their economy society and family, and that it has also affected trans-
border communities between Bangladesh, India and Myanmar on
1
Bose, Tapan K. and Manchanda, Rita (eds.). States, Citizens and Outsiders: The
Uprooted Peoples of South Asia. South Asia Forum for Human Rights Kathmandu
(1997), at Appendix B.
the eastern side and between Afghanistan, Iran and Pakistan on the
western side;
Recognising that sometimes states do not accept refugees from

another country for fear of incurring the displeasure of the refugee
creating state;
Concerned that the situation of the refugees and displaced persons

in South Asia has evolved in recent years to the point at which it
demands special attention and action, call upon the South Asian
states to develop and adopt a Regional Charter and a Protocol for
the protection of refugees and displaced persons.
The Participants call upon the states to accede to and ratify the 1951
UN Convention on the Status of refugees and the 1967 Protocol,
without reservation.
A Regional Charter/Protocol must make it incumbent on the states

to receive refugees on humanitarian ground and the regional charter
should provide for a mechanism to support the refugee receiving
country in such instances.
While recognizing the right of a state to refuse permanent asylum to

a refugee, the regional mechanism must ensure that the states grant
temporary asylum and protection to the refugee till the person finds
another country willing to accept her/him;
Underlining that states have a responsibility to prevent incitement

of racial, religious and other hatred against refugees, migrants and
displaced persons;
200 SAHR
The Regional Charter/Protocol should ensure that any repatriation

of refugees is voluntary and is declared to be soon an individual
basis, and is carried out in an atmosphere of transparency with the
cooperation of UNHCR and NGOs working in the area of relief
and protection.
The Participants demand that the Regional Charter/ Protocol must

ensure that no person or community can be deprived of the right
to citizenship, habitat, language, religion and culture arbitrarily by
states/ governments or be made stateless. Citizenship must not
be taken away because of marriage. There should be no gender
discrimination on grant of citizenship including all rights flowing
therefrom. States must ensure that all citizens enjoy the right to
freedom of movement and residence within their borders. The states
individually and the regional governments collectively must agree to
protect these basic rights of the people of the South Asian region.
Aware that the definition of Refugees in the 1951 Convention is

restrictive and that it applies only to persons who are outside their
country,- owing to well founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group
or opinion- and that the definition does not provide protection to
those who have been forced to flee or have been internally displaced
because of ethnic strife, civil disturbance, breakdown of law and
order, denial of human rights and insecurity of food, land and water
caused by forces beyond their control;
Bearing in mind that the 1969 OAU Convention Governing the

Specific Aspects of Refugee Problems in Africa, while retaining
the definition of refugee contained in the 1951 UN Convention,
expanded it by adding,
the term refugee shall also apply to every person who, owing
to external aggression, occupation, foreign domination or
events seriously disturbing public order in either part or the
whole of his country of origin or nationality is compelled
to leave his place of habitual residence...
Observing that the Cartagena Declaration on refugees adopted by

the Central American governments in 1984 further expanded the
definition of refugees to include
persons who have fled their country because their lives,

safety or freedom have been threatened by generalized
violence, foreign aggression, internal conflicts, massive
violation of human rights or other circumstances which
have seriously disturbed public order...
The participants call upon the states of South Asia to expand the
definition of refugees along the lines of the OAU Convention and
the Cartagena Declaration and also taking into consideration the
following:
Victims of forced eviction, man-made and natural disasters and

environmental refugees
Noting that some policies pursued by South Asian governments
have impoverished vast sections of their peoples, particularly those
belonging to minority communities and economically backward
sections and that some of these development projects have adversely
impacted the economy and livelihood of peoples across the border
forcing them to be uprooted and some of them have crossed
international borders to become refugee/ migrants;
202 SAHR
Concerned that millions of people have been uprooted by such

development projects and by natural environmental disasters to
become internally displaced;
Regretting that the failure of governments to provide the security

of food, shelter, land and water has caused mass migration of their
peoples across borders in search of livelihood and shelter;
Observing that the integration of the economies of South Asia into

the global economy has intensified the free flow of capital and goods,
the participants urge the states to adopt a policy of developing an
integrated labour market in the region of South Asia. This is essential
to prevent the exploitation of migrants and displaced persons by
unscrupulous employers in sweat shops.
Recognising that migrant women and children are the worst affected,
the states are called upon to make special efforts to protect their
rights.
The participants further recommend that the South Asian Charter/

Protocol on refugees, migrants, internally displaced and stateless
persons should recognize all such persons who have been displaced
by natural and/or manmade disasters and the denial of food, land
and water security as Persons of Concern.
The states have an obligation to protect the rights of its citizen to

remain in their habitat. The states shall endeavour not to create a
situation which compels citizens to be displaced. States shall be
responsible for the rehabilitation of all internally displaced persons
in a dignified and secure manner. The participants are of the opinion
that the states shall be held accountable for the displacement of their
citizens to other countries.
However, when such displaced persons seek refuge in another state,

the host state should respect the principle of non-refoulement.
Accepting that it is important to retain the distinction between

people who flee because of political, ethnic and cultural persecution,
discrimination, violation of human rights and the disruption of law
and order and those who leave their homes because of insecurity of
food and shelter;
But noting that the migration is complicated by the fact that

governments and or majority groups are systematically denying
relief and violating the human rights of affected communities, the
participants urge caution in matters of classification of refugees and
displaced persons as economic refugees or migrants.
The assumption that migrants cause economic hardship to the poorer

sections of the host country population by competing for lower wage
jobs may not necessarily be correct. There is a need for research on
this in South Asia.
Governments and NGOs should take up the task of developing

a detailed status report on cross border population movements.
Existing policies are based on assumptions and conjecture. The
Nepal-India case is a telling example.
Minimum standards
Understanding that the South Asian states cannot be called upon
to provide for high standards of relief and support to refugees,
stateless and displaced persons as envisaged in the 1951 UN
Convention and the 1967 Protocol, it is necessary that minimum
standards be maintained, otherwise the act of granting temporary
204 SAHR
asylum or residence permit becomes meaningless. This should be

ensured through a regional standard setting exercise which must be
enforceable. A regional fund and responsibility sharing mechanism
need to be created to help smaller and poorer states.
In this regard the OAU Convention and the Cartagena Declaration

can serve as models.
States should provide access and support to UNHCR, international

and national aid and relief agencies to fulfill their obligations.
UNHCR and regional mechanism

While appreciating that UNHCR is expanding its mandate to
cover internally displaced persons, there is concern that it has been
diluting its protection mandate for refugees. This trend needs to be
arrested. Anxiety is being expressed at the tendency of UNHCR to
support imposed repatriation of refugees to home countries under
less than desirable conditions.
UNHCR has been decreasing its financial support for refugees in

South Asia. This needs to be checked. The refugee determination
process should be transparent. The process of status determination
followed by UNHCR is not open to scrutiny. It is recommended that
in the region of South Asia refugee status determination should be
done jointly by the states and UNHCR under a Regional Charter/
Protocol. This process should be open to judicial scrutiny and appeal.
Kathmandu,
November 22, 1996
South Asians for Human Rights (SAHR)
345/18, Kuruppu Road (17/7 Kuruppu Lane), Colombo 8
Tel/Fax: +94-11-2695910
Email: sahr@southasianrights.org
Website: www. southasianrights.org

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NATION STATE BOUNDARIES

Telephone/Fax: +94 112 695910

Printed and Published in 2017

ISBN: 978 - 955 -1489 - 20 - 5

HRC Human Rights Council (United Nations)

OHCHR Office of the High Commissioner of Human Rights

The SAHR study on border issues completed in June 2016, focuses

SAHR intends to use the study as an advocacy tool for encouraging

SAHR is grateful to Ms. Shomona Khanna who is an experienced

SAHR also wishes to thank the following persons:

Ms. Shomona Khanna for conducting the study; Ms. Tusharika

SAHR advisory group on the border study Ms. Sultana Kamal,

All the Bureau Members for their guidance and support in

Annexure A: A Brief Note on the Inter-American 177

One day there will be no borders,

and the only passport

will be the heart.

Remembering Felani Khatun

Subsequently, Amnesty India declared that it would file a Public

This tragic story encapsulates the challenges and human tragedies

security legislations which protect their actions, and the general

In the present study, the author attempts to untangle each of these

It is also important to clarify that the study focuses only on the

A brief outline of the different borders shared by the SAARC

The border of Afghanistan with Pakistan, for instance, which is

Durand Line measures about 2,640 kilometers from Baluchistan to

Bangladesh shares a 4,096.7 km long border with India. On the

Between other countries where there is no history of antagonism

Cordial relations also exist between India and the Kingdom of

including Zhemgang, Sarpang, Samdrup, Jongkhar, Chukkha and

The two countries share a unique relationship between their armed

Similarly, the sea-bound country of Sri Lanka has no border

Migrations from one country to another in this region of vast

Given the acrimonious nature of relationships and the nascent

police forces. Without exception, we find that such security forces

It is not surprising that such abuses are intense in border areas

It becomes, therefore, important to see whether any remedy is

Weaponisation of Border Areas,

The borders shared by Pakistan and Afghanistan, with their close

the small-weapons trade in Afghanistan has been labelled the

Being a highly inaccessible and mountainous area, the border has

The migration of refugees, narcotics and weapons trafficking, human

Warlords in Afghanistan and Pakistan are responsible for the $80

The United Nations Office on Drugs and Crime (UNODC) has

In some countries, notably in India, East and Central Asia,

Between India and Pakistan, direct trade is minuscule, with trade

through re-exporting from third countries, as well as illegal trade or

Another serious problem is the smuggling of fake Indian currency.11

smuggling due to the high returns, facilitated by the easy availability

As stated earlier, as a result of various bilateral agreements between

In October 2009, the Revised Agreement of Co-Operation between

At a meeting of the joint task force on Nepal-India Border

India, trading of counterfeit money, child abuse, use of illegal SIM

Insofar as the border between India and Bangladesh is concerned,

is a major issue. One writer describes the nature of illegal activities

As against half a dozen legal entry points between the two

The flourishing illegal trade in Phensedyl, a codeine-laced cough

However, the biggest concern remains the influx of migrants from

Human trafficking across the India-Bangladesh border is rampant.

It is important to recognise that once channels are established for

Drug trafficking facilitates other organised criminal enterprises

Therefore, the need to crackdown on drug trafficking in the border

Human Rights Violations by Security

However, without exception, we find that there is a marked tendency